UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE   LAW   OF   CRIMES 


THE 


LAW    OF    CRIMES. 


BY 


JOHN   WILDER   MAY, 

CHIEF  JUSTICE  OF  THE  MUNICIPAL  COURT^   AND  LATE  PROSECUTING 
OFFICER  FOB  BOSTON. 


Third  Edition 


EDITED    BY 

HARRY  AUGUSTUS   BIGELOW, 

ASSISTANT   PROFESSOR    OF  LAW  IN  THE  LAW  SCHOOL  OF 
THE  UNIVERSITY  OF  CHICAGO. 


BOSTON . 
LITTLE,  BROWN,  AND   COMPANY. 

1905. 


T 
1905 


Copyright,  1881, 
By  John  Wilder  May. 

Copyright,  1893,  1905, 
By  Henry  F.  ]\Iay. 


All  rights  reserved 


THE    UNIVEUSITY    I'UESS,  CAMBIIIDGE,  U.  S.  A. 


PREFACE  TO  THE  THIRD   EDITION. 


In  the  preparation  of  the  present  edition  the  aim 
has  been  the  same  as  with  the  first  and  second 
editions,  namely,  to  make  a  book  that  might  be  of 
service  both  to  the  student  and  to  the  profession  at 
large.  With  these  ends  in  view,  the  additional  space 
made  available  by  the  enlarged  size  of  the  present 
edition  has  been  utilized  in  two  ways :  first,  the  gen- 
eral principles  of  the  criminal  law  underlying  all 
applications  of  it  have  been  stated  somewhat  more  in 
detail,  and  more  fully  illustrated  by  examples,  and  the 
same  course  has  been  followed,  wherever  it  seemed 
advisable,  in  dealing  with  the  specific  offences  ;  sec- 
ond, the  citations  have  been  increased,  the  aim  being 
particularly  to  add  recent  cases  showing  the  present 
application  and  condition  of  the  common  law  of  crimes. 
As  a  matter  of  convenience  to  both  practitioner  and 
student,  in  citing  cases,  references  have  been  made, 
not  only  to  the  official  reports  but  to  the  national  re- 
porter series  and  to  collections  of  criminal  cases.  It 
being  recognized,  however,  that  this  is  an  elementary 
treatise,  no  attempt  has  been  made,  either  in  discus- 
sion of  principles  or  citation  of  cases,  to  be  exhaustive. 


.^fi9384 


vi  PREFACE   TO  THE  THIRD  EDITION. 

The  text  and  arrangement  of  paragraphs  of  the 
second  edition  have,  with  a  few  unimportant  excep- 
tions, been  preserved  intact,  and  the  table  of  corre- 
sponding sections  prepared  by  Professor  Beale,  the 
editor  of  the  second  edition,  has  been  retained  as  being 
equally  applicable  to  the  present  edition.  The  para- 
graphs and  sections  added  by  the  present  editor  have 
been  indicated  in  the  list  following  the  table  of  corre- 
sponding sections. 

The  editor  has  derived  assistance  from  the  collec- 
tions of  cases  of  Professor  Beale  and  Professor  Mikell. 
As  a  second  edition  of  Professor  Beale's  work  will 
probably  before  long  supersede  the  present  edition, 
it  was  not  considered  advisable  to  insert  references 
thereto. 

In  addition  to  the  usual  abbreviations  the  following 
have  been  used : 

C.  =  Chaplin's  Cases  on  Criminal  Law. 
K.  =  Kenny's  Cases  on  Criminal  Law. 
M.  ^Mikell's  Cases  on  Criminal  Law. 


PREFACE   TO  THE   SECOND   EDITION. 


In  preparing  a  second  edition  of  May's  Criminal 
Law,  it  seemed  best  for  the  sake  of  completeness  to 
treat  certain  subjects  which  had  not  been  considered 
by  the  author.  The  original  plan  of  the  work  in- 
cluded no  discussion  of  the  subjects  of  Criminal 
Pleading  and  Practice ;  but  it  was  found  that  it 
would  be  better  adapted  for  the  use  of  students  if 
those  subjects  were  briefly  considered,  and  this  has 
accordingly  been  done.  Much  has  also  been  added 
to  the  first  chapter,  which  contains  the  general  prin- 
ciples underlying  the  criminal  law. 

No  attempt  has  been  made  by  the  editor  to  treat 
the  subjects  he  has  introduced  in  an  exhaustive  man- 
ner, or  to  make  a  complete  collection  of  authorities. 
He  has  endeavored,  in  adding  to  the  text,  to  imitate 
the  clearness  and  conciseness  of  the  author;  and  in 
citing  new  cases,  he  has  intended  to  include  only  such 
as  illustrate  principles  not  before  stated. 

The  alphabetical  arrangement  of  crimes,  adopted 
by  the  author  after  some  misgivings,  has  proved  in- 
convenient, and  is  now  abandoned  ;  and  the  second 
part  of  the  work  has  been  rearranged  according  to 


viii  PREFACE  TO  THE  SECOND  EDITION. 

what  is  hoped  to  be  a  more  satisfactory  method. 
The  arrangement  is  in  the  main  that  of  Blackstone 
and  of  Bishop. 

The  numbering  of  the  sections  is  of  course  entirely 
changed.  For  the  purpose  of  comparison,  a  table  is 
given  by  which  the  section  of  this  edition  may  be 
found  which  corresponds  with  each  section  of  the 
first  edition.  It  was  impracticable  to  note  the  ad- 
ditions of  the  editor  in  the  text  itself ;  but  a  list 
of  the  chief  additions  has  been  prepared,  so  that  it 
is  easy  to  discover  which  of  the  statements  of  law 
are  supported  by  the  authority  of  Judge  May. 

Thanks  are  due  to  Professor  Robinson  of  the  Yale 
Law  School  for  kind  suggestions.  Much  assistance 
has  been  obtained  from  Mr.  H.  W.  Chaplin's  excel- 
lent collection  of  Cases  on  Criminal  Law. 


PREFACE  TO  THE  FIRST  EDITION. 


In  the  following  pages  the  author  has  endeavored 
to  state  briefly  the  general  principles  underlying  the 
Criminal  Law,  and  to  define  the  several  common  law 
crimes,  and  such  statutory  crimes  —  mala  in  se,  and 
not  merely  mala  prohibita  or  police  regulations  ^  —  as 
may  be  said  to  be  common  statute  crimes. 

The  brevity  of  this  treatise  did  not  admit  of  a  his- 
tory of  what  the  law  has  been,  nor  a  discussion  of 
what  it  ought  to  be  ;  but  only  a  statement  of  what 
it  is.  In  the  cases  cited  will  be  found  ample  learn- 
ing upon  the  first  of  these  points.  Digressions  upon 
the  second  would  be  out  of  place  in  a  book  designed 
as  a  lawyer's  and  student's  hand-book. 

The  alphabetical  arrangement  has  been  adopted  in 
the  second  chapter,  as  on  the  whole  more  convenient 
for  the  practising  lawyer.  The  student,  however,  will 
perhaps  find  it  to  his  advantage,  on  first  perusal,  in- 
stead of  reading  consecutively,  to  pursue  the   more 

1  On  the  question  of  the  limitation  of  this  power  of  police  regu- 
lation, see  2  Kent's  Com.  340  ;  Com.  v.  Alger,  7  Cush.  (Mass.)  53 ; 
Thorp  )'.  K.  &  B.  Railroad  Co.,  27  Vt.  149 ;  Slaughter-House  Cases,  16 
Wall.  (U.  S.)  36. 


X  PKEFACE  TO  THE  FIRST  EDITION. 

scientific  method  of  grouping  the  titles  ;  taking  firat, 
for  instance,  crimes  against  the  person,  —  as  Assault, 
Homicide,  and  the  other  crimes  where  force  applied 
to  the  person  is  a  leading  characteristic  ;  then  crimes 
against  property,  —  as  Larceny,  Embezzlement,  Cheat- 
ing, False  Pretences,  and  the  like,  where  fraud  is  a 
leading  characteristic  ;  to  be  followed  by  Robbery, 
Burglary,  Arson,  and  Malicious  Mischief  ;  and  con- 
cluding with  such  crimes  as  militate  against  the  pub- 
lic peace,  safety,  morals,  good  order,  and  policy,  — 
as  Nuisances  generally,  Treason,  Blasphemy,  Libel, 
Adultery,  and  the  like. 

If  the  author  has  succeeded  in  his  design,  the  prac- 
tising lawyer  may  readily  find  within  the  compass  of 
these  few  pages  the  law  which  he  seeks,  and  the 
authorities  in  its  support. 

J.  W.  M. 


CONTENTS. 


Pages 
Table  of  Cases xv-xlvii 


CHAPTER  I. 

Of  the  Definition  of  Crime,  and  of  Certain  General 
Principles  Applicable  thereto. 

§§    1-5.  Crime  Defined 1-6 

6-25.  The  Criminal  Act 6-25 

26-34.  The  Criminal  Intent 25-40 

35-52.  Criminal  Capacity 40-57 

53-57.  Intent  in  Statutory  Crimes 57-60 

58-68.  Justification  for  Crime 60-69 

69-76.  Classification  of  Criminals 70-79 

77-86.  Locality  and  Jurisdiction 79-87 

CHAPTER   II. 

Of  Criminal  Procedure. 

§§  87-97.     Process  of  a  Criminal  Prosecution 90-95 

98-110.  Criminal  Pleading.  —  The  Indictment  .     .     .     .     .95-103 

111-116.     Joinder  of  Counts  and  Offences 103-105 

117-123.     Double  Jeopardy 106-112 

124-132.     Evidence  in  Criminal  Cases 112-118 


CHAPTER  III. 

Offences  against  the  Government. 

§§  134-139.     Treason 119-1^3 

140.     Bribery 123-125 

141-142.     Extortion  and  Oppression 125-127 

143-145.     Barratry.  —  Champerty.  —  Maintenance     .     .     .  127-131 

146.     Embracery 131 


XU  CONTENTS. 

§§147-153.  Perjury 131-138 

151-158,  Contempt 138-143 

159-1(32.  Rescue.  —  Escape.  —  Prison  Breach 114-145 


CHAPTER   IV. 

Offences  against  the  Public  Tranquillity,  Health,  and 

Economy. 

§  164.     Affray 146-147 

165-166.  Riot.  —  Rout.  —  Unlawful  Assembly     ....  147-150 

167-170.     Forcible  Entry  and  Detainer 150-152 

171.  Eavesdropping 153 

172-176.     Libel  and  Slander 153-159 

177.  Engrossing.  —  Forestalling.  —  Regrating   .     .     .  159-160 

178-182.     Nuisance 160-164 

18.3-185.     Attempt 165-170 

186-191.     Conspiracy 170-177 


CHAPTER  V. 
Crimes  against  Religion,  Morality,  and  Decency. 

§  193.     Apostasy 178-179 

194.  Blasphemy 179-181 

195.  Adultery 181-182 

196.  Bigamy 182-185 

197.  Seduction 18.5-188 

198.  Abduction 188-190 

199.  Kidnapping 190 

200.  Abortion 190-192 

201.  Lasciviousness 192-193 

202.  Fornication I93 

203.  Sodomy 193-195 

CHAPTER  VI. 
Offences  against  the  Person. 

§§  20.5-210.     Assault 196-208 

217.     iMayhem 208-210 

218-239.     Homicide       .     • 210-231 

240.     False  Imprisonment 031 

241-214.     Pwipe [     [  231-233 

245.     Robbery 234-238 


CONTENTS.  Xlll 

CHAPTER  VII. 

Offences  against  a  Dwelling-House. 

Pages 

§§  250-255.     Arson 239-243 

256-268.     Burglary 244-251 

CHAPTER  VIII. 
Offences  against  Property. 

§§  270-297.     Larceny 253-291 

298-304.     Embezzlement 291-299 

305-317.     False  Pretences 299-312 

318-320.     Cheating 313-315 

321-323.     Malicious  Mischief 315-318 

324-328.     Receiving  Stolen  Goods 319-321 

329-335.     Forgery 321-328 

336.     Counterfeiting 328-329 

CHAPTER  IX. 

Maritime  Offences. 

§  338.     Piracy 330-331 

339.     Barratry 331-332 


Index 335-366 


TABLE   OF   CASES. 


[references  are  to  pages.] 


Abbott,  P.  V. 

Reg.  V. 

Hex  V. 
Abington,  Rex  v. 
Abley,  S.  v. 
Abrams  r.  P. 
Adams  v.  Barratt, 

C.v. 

Hunt  V. 

V.  P. 

P.  y. 

Reg.  V. 

Rex  V. 

r.  S. 

S.    V. 

U.  S.  V. 
Adev,  Rex  v. 
Affleck,  Cliikl  v. 
Agiiee,  Rex  v. 
All  Fat,  P.  V. 
Alley,  S.  V. 
Albanv,  Hart  v. 

P.'  V. 

Albertz  v.  U.  S. 
Alcorn,  S.  v. 
Alderman,  C.  v. 
Alexander  v.  S. 

S.  V. 
Alford,  S.  V. 
Alger,  P.  V. 
i^llen,  C.  V. 

P    V. 

Reg.  V. 

V.  S. 

S.  V.  66,  7 

Woodliain  v. 
Allyn  V.  S. 
.Almon,  Rex  v. 
Alonzo  I'.  S. 
Alvia  V.  S. 
Ambrose  v.  S. 
Ambrose  Light,  The 
Ames,  P.  V. 

S.  «. 
Amherst  Bank,  Lathrop 
Ammon,  P.  v. 


279 

309,  310 

212 

159 

18 

275,  278 

209 

29 

323 

75,82 

82 

155,  321 

312 

280 

17,  187 

18 

220 

158 

2 

23,  222 

209 

164 

48 

65 

191 

108 

16,  79,  246 

45,  149,  261 

197 

187 

161,  175 

294 

184,  194,  220 

245 

3,  76,  135,  287 

21 

71 

72 

182 

259 

109 

381 

118 

322 

129 

319 


Amory  v.  Delamirie,  271 

Amy,"U.  S.  y.  85,108,109 

Anderson  v.  C.  173,  193 

V.  Comptois,  141 

P.  V.  270 

Reg.  V.  81 

V.  S.  47,  67,  232 

S.  V.  61,  278,  327 

Andrews  v.  Andrews,  185 

C.  V.  320 

Angell  V.  S.  213 

Angelo  V.  P.  '  40 

Angley,  Prlester  v.  230 

Anglo-Am.  Co.,  U.  S.  Cable  Co.  v.     80 

Ann,  Brig,  54 

Ann  V.  S.  224 

Anone,  S.  v.  16,  79 

Anonymous,    10, 12, 29,  42,  60, 162, 223, 

235,  256,  260,  278,  282 


249, 


Reg.  ?\ 

Rex  V. 
Antelope,  The, 
Anthony,  U.  S.  v. 
Appling,  S.  V. 
Archer,  S.  v. 
Arden  v.  S. 
Ardley,  Reg.  v. 
Arkle,  S.  v. 
Armington,  S.  v. 
Armour  v.  S. 
Armstrong,  Reg.  v. 
'      S.  V. 
Arnold  o.  S. 

S.  V. 
Ash,  S.  V. 

Wenman  v. 
Ashbrook  v.  C. 
Asliburn  v.  S. 
Asher,  S.  r. 
Ashton,  U.  S.  V. 
Ashwell,  Reg.  v. 
Askew  V.  S. 
Astley,  Rex  v. 
Aston,  Reg.  i\ 
Atchison,  S.  v. 
Atlierton  v.  Atherton,  " 


24 

98 

331 

25,  58 

11,  192 

206,  296 

134 

301,  303 

270,  284 

185 

249 

80,82 

181,  182 

327 

40 

22 

157 

164 

132 

5,  16,  301 

70 

272 

68 

236 

297 

44 

185 


XVI 


TABLE   OF   CASES. 

[References  are  to  pages.] 


Atkins,  Rex  v. 

S.  V. 

U.  S.  V. 
Atkinson,  Rex  v. 

V.  S. 
Attorney-General  v.  Kwok-a-Sing, 

r.  Sillem, 

V.  Steward, 

V.  Williams, 
Aukey,  McGoon  v. 
Aultman  v.  Waddle, 
Austin,  P.  i\ 
Austine  v.  P. 
Aveline,  Hartman  v. 
Avery,  S.  u.  12,  154, 157,  169, 

V.  \Yard, 
Ayres,  Rex  v. 

S.v. 


B. 


14 
155 
135 

312 
214 
330 
167 
162 
161 
254 
130 
218 
232 

88 
317 
134 
218 

75 


Baalani  v.  S.  25 

Babb,  Rex  v.  142 

Babcock,  P.  u.  314 

U.  S.  V.  132,  134 

Bachman,  Houghton  v  91 

Bagan,  S.  v.  169 

Baerley,  C.  v.  126 

Baflev,  Reg.  v.  284 

Rex  V.  39,  58,  247 

V.  S.  272 

Bain,  S.  v.  21 

Baines,  Rex  v.  125 

Bakenian,  C  v.  182 

Baker  r.  Hall,  188 

Hitchcock  V.  144 

V.  P.  184 

P.  V.  36,  185 

Reg.  V.  136,  250 

V.  H.  269,  270 

S.  V.  201 

Balbor.  P.  116 

lialdrv,  Reg.  v.  115 

Baldwin,  C.  v.  324,  326 

Balkuni  r.  S.  201,  204 

Ball  V.  White,  256 

Ballentine  v.  Webb,  165 

Ballon,  S.  v.  69 

l?aniber,  Reg.  v.  70 

Bancroft,  S.  >:  250 

Bank  of  London,  Brittain  v.  324 

Banks,  Ucg.  r.  200 

Rex  V.  274,  275,  284 

S.  r.  280 

Baiikus  V.  S.  148 

Batmen,  Reg.  v.  71 

Bantley,  8.  v.  24,  27 

Barber  r.  S.  2.'^1 

Welch  V.  141,  143 


Barclay  Coal  Co.,  Morris  Run 

Co.  1-. 
Barefoot,  S.  v. 
Barge  v.  C. 
Barker  r.  C. 
Barlow,  C.  v. 
Barnard,  Blake  v. 

Rex  V. 

v.S. 

S.v. 
Barnes,  Reg.  v. 

V.  S. 

S.v. 
Barnett  v.  S. 
Barney,  C.  v. 
Barratt,  Adams  v. 
Barrett,  P.  v. 

Reg.  V. 

S.v. 
Barretry,  Case  of, 
Barric,  P.  v. 
Barronet,  Ex  parte, 
Barrow,  Reg.  v. 
Barry,  C.  v.  85,  198, 

P.  V. 

Bartell  v.  S. 
Barthelmy  v.  P. 
Bartlett,  S.  v. 
Barton  i*.  P. 

S.v. 
Bass  V.  S. 

S.v. 
Bates  V.  S. 

Bathliurst,  Empson  v. 
Battle,  S.  V. 
Bayard  v.  McLean, 
Bazeley,  Rex  v. 
Bcacall,  Rex  v. 
Beacham,  U.  S.  v. 
Real,  S.  r. 
Beale,  Rex  v. 
Beam  an,  C.  v. 

Reg.  v. 
Bean,  C.  v. 
Beard  v.  S. 

v.  U.  S. 
Beasley  v.  P. 

r.  S. 
Beatty  v.  Gilbanks, 

V  S. 
Beaty,  U.  S.  v. 
Bcaiicliamp  v.  Morris, 

v.  S. 
Beck,  S.  V. 
Beckliam  v.  S. 
Beccham,  Reg.  v. 
Beccher  v.  P. 
Beechey,  Reg.  v. 


Coal 

173,  175 

183 

112 

11,  163 

8,  9,  114 

205 

302,  304 

187 

32 

297 

58,59 

95 

65 

240,  241 

209 

108,  143 

33,  233 

30 

128 

79 

54,58 

233 

261,  262, 

277,  292 

136 

201 

155,  157 

84,  115 

304 

295 

79 

82 

102 

126 

108 

129 

273,  290 

24,  298 

35 

167, 248 

124 

256 

279 

102,  319 

84 

65 

101,  104 

52,  281 

11 

270,  285 

60 

152 

219 

199 

282 

283 

161 

298 


TABLE   OF   CASES. 
[References  are  to  pages.] 


Beckman,  S.  v. 

315 

Beeley  v.  VVingfield, 

22 

Beene  v.  S. 

142 

Bee  Publishing  Co.,  S.  v. 

140 

Beggs  V.  S. 

183 

Begley  v.  C. 

55 

Beliimer,  S.  v. 

110 

Behm,  S.  v. 

32 

Belden,  S.  v. 

no 

Belding,  C.  v. 

26 

Belk  V.  P. 

23 

Bell,  C.  V. 

124 

V.  Mallory, 

149 

F.v. 

46 

V.  S. 

11,  258,  291 

S.v. 

50,  51,  251 

U.  S.  V. 

135 

Bemmerly,  P.  v. 

49 

Benedict  v.  Covvden, 

325 

V.  Hart, 

150 

S.  V. 

205 

Benge,  Reg.  v. 

33,  226 

Bennett,  P.  v. 

287 

Keg.  y.               19,31, 

199,  202,  221 

V.  S. 

112 

Benson  v.  McMalion, 

86 

Bentinck  v.  Franklin, 

129 

Bentz,  S.  v. 

42 

Bergeron  v.  Peyton, 

272 

Bergman  ii.  P. 

263 

Berkley,  S.  v. 

66 

Berkowitz  v.  U.  S. 

175 

Berry,  C.  v. 

273,  291,  292 

Reg.  V. 

281 

V.  S. 

284 

S.v. 

45 

Berryman,  S.  v. 

258 

Best,  P.  V. 

49 

Reg.  V. 

174 

Bevans  v.  U.  S. 

37 

Beverley's  Case, 

49 

Biasy.  U.S. 

37 

Bice  V.  S. 

70 

Bierce,  S.  v. 

21,  186 

Bigelow,  C.  ('. 

152 

Bigley,  Rex.  v. 

246 

Biles  V.  C. 

325 

Bingley,  Reg.  v. 

259 

Rex  V. 

72 

Robertson  v. 

143 

Binney,  Clark  v. 

159 

Birchall,  Reg.  v. 

23 

Bird  V.  Jones, 

203,  231 

F.v. 

308 

Reg.  V.          104,  108 

110,  112,  287 

Birdsong  v.  S. 

320 

Birney  v.  S. 

58,  60 

Birt,  Rex  v. 

148 

Biscoe  V.  S. 

116 

Bishop,  Reg.  v. 

S.  V. 

V.  S. 
Bismarck  i'.  S. 
Bjornaas,  S.  v. 
Black,  S.  V. 
Blackburn,  C.  v. 

V.  S.  45,46,71,170, 

Blackham,  Rex  v. 
Blackwell  v.  S. 
Blades  v.  Higgs, 
Blaikie  v.  Linton, 
Blair  i-.  S. 
Blake  v.  Barnard, 

P.    V. 

Reg.  I'. 
Rex  V. 
Blanchard,  Hamaker  v. 

P.  V. 
Blanding,  C.  v.  157, 

Bledsoe  v.  C. 
Bliss  V.  U.  S. 
Blodgett,  C.  V. 
Bloom,  S.  V. 
Bloomer  v.  S. 
Bloss  *'.  Tobey, 
Blytlie,  Bowman  v. 
Board  v.  Sellew, 
Boatwright  v.  S. 
Bob  V.  S. 

Bodiford  v.  S. 

Bod  well  V.  Osgood, 

Boggus  V.  S. 

Bolian,  S.  v. 

Bohannon  v.  C. 

Boies,  S.  V. 

Bolland,  Rex  v. 

Bollman,  Ex  parte, 

Bonfanti  r.  S. 

Bonner,  C.  v. 

Boody,  S.  V. 

Booker  v.  S. 

Boon,  S.  V. 

B.  &  0.  R.  R.,  Robinson  v. 

Berk  V.  P. 

Boston.  C.  !'. 

Boswell  V.  C. 

Bosworth  C.  v. 

Botkin,  P.  V. 

Bott,  U.  S.  V. 

Bowden,  Reg.  v. 

Bowen,  C.  v. 
V.  Sullivan, 

Bovvers,  Reg.  v. 
V.  S. 

Bowles  V.  S. 

Bowlin  I'.  S. 

Bowman  v.  Blytlie, 
Reg.  V. 


XVll 


59 
251 
71 
273 
327 
311 
175 
212,  231 
30,  238 
147 
259 
19 
281 
205 
13,  51 
173 
150 
271 
301 
158,  159 
68 
74 
62 
117 
231,  237 
240 
128 
142 
193 
30 
182 
158 
185 
207 
207,  229 
149,  318 
324 
121 
49 
157 
296 
51 
244 
161 
296 
162 
49 
118 
82 
26 
290 
212 
271 
294 
209 
221 
234 
126 
108 


xvm 


TABLE   OF   CASES. 
[References  are  to  pages.] 


Boyce  v.  P. 

187 

Brown,  S.  v.        108, 

137,  216, 

Rex  V. 

35 

287, 

Bovett,  S.  1-. 

57 

V.  Union  Ins.  Co 

BoVle,  P.  r. 

194 

V.  Weaver, 

Boynton,  C.  v.           58,  59,  79,  313, 

314 

Brown's  Case, 

Boysen,  S.  v. 

247 

Bruce,  Reg.  c. 

Bradford,  C.  v. 

55,  56, 

116 

f.  S. 

v.S. 

259 

Bruley  v.  Rose, 

Bradlaugh  v.  Reg. 

100 

Brunson,  S.  v. 

Bradley,  Ex  /xirte, 

142 

Bryan,  Reg.  v. 

301, 

Bradsliaw,  Reg.  v. 

19,  20 

230 

Bryans  v.  8. 

Brady,  Chittenden  v. 

140 

Bryant,  8.  v. 

C.v. 

135 

Walker  v. 

S.v. 

154 

Biibb,  Reg.  r. 

V.  S. 

297 

Buchanan,  8.  v. 

Brain,  Rex  v. 

211 

Buck,  Keith  v. 

Braisted,  P.  v. 

19 

S.v. 

Bramley,  Rex  v. 

280 

Buckland  v.  C. 

Branch  i:  S. 

316 

Buckman,  8.  v. 

Brandenburg,  S.  i'. 

186 

Buckmaster,  Reg.  v. 

264, 

Brandon,  Clifford  v. 

149 

174 

Buckner,  Protector  i 

a.v. 

45,  47,  67 

Buell,  Chea.lle  v. 

Bransby,  P.  v. 

199 

Buffum's  Case, 

Brawn,  Reg.  o. 

184 

Bugg,  S.  V. 

Brazier,  Rex  v. 

275 

276 

Bull,  Calder  v. 

Brazil  v.  S. 

32G 

C.  V. 

S.v. 

148 

149 

Reg.  V. 

Breese  v.  S. 

73,78 

245 

Rex  V. 

Brewer,  C.  v. 

323 

Bunce,  l^leg.  v. 

P.  V. 

187 

Bundy,  8.  v. 

V.  S. 

64 

Bunfil  (,'.  P. 

Brewester,  Walker  v. 

161 

Bunn,  Reg.  v. 

Brewington,  S.  v. 

11 

Bunting,  Reg.  v. 

Brick,  Rex  v. 

245 

Burden,  P.  v. 

Bridges  v.  ilawksworth, 

271 

Burdett,  Reg.  v. 

Bright,  Gill  v 

273 

Hex  V. 

114,  125, 

Briley,  8.  v. 

209 

Burgdorf,  S.  v. 

Brinkerhoff,  Thallhinier  i 

129 

Burge  V.  8. 

Britain  v.  S. 

11 

Burgess,  Reg.  v. 

Britt  r.  8. 

23G 

Burget  V.  Greenfield, 

Brittain  v.  Bank  of  London, 

324 

Burgiss,  Rex  v. 

Brit  ton,  L".  S.  v. 

4 

Burgo  V.  8. 

Brock,  8.  V. 

157 

Burke,  C.  v. 

Broderick,  Isham  v. 

164 

8.  V. 

•S.  r. 

235 

237 

Bnrkhardt,  P.  v. 

Brooke,  Reg.  v. 

157 

Burlington,  Linnber 

Co.  V. 

Brooker  v.  C. 

139 

Buniard,  Shearni  v. 

Brooks  V.  C. 

213 

Burnett,  Rex  v. 

C.v. 

70 

Biirnliatn,  S.  v. 

10,  20, 

Rex  V. 

250 

Burr,  U.  8.  v. 

v.S. 

269 

Burrel,  Lott  v. 

S.  >:                       148, 

149,  168, 

295 

Burrouglis,  8.  v. 

Broughton,  Rex  v. 

125 

Burrow  r.  8. 

Brow,  8.  r. 

189 

15urrows,  8.  t'. 

Brown  v.  C. 

45,46 

24!) 

Burt  v.  S. 

C.  r. 

275, 

277 

8.  y. 

P.  r.                        115, 

135.  184, 

2.32 

Burton,  C.  v. 

Reg.  V. 

1G7,  108 

194 

V.  8. 

v.S. 

136, 

220 

S   V.                125, 

204,  205, 

257,  2G9, 

295,  312 

332 

62 

14 

29 

5 

280 

12 

303,  310 

106 

62 

134 

33 

174,  175 

21 

141 

324 

13,  162 

266,  312 

219 

276 

142 

249 

3 

26 

304 

274 

264,  302 

49 

189 

171,  173 

10 

138 

82 

126,  157 

232 

289 

22 

161 

91 

46,48 

200,  233 

64 

318 

162 

{6 

10 

155,  171 

121,  122 

140 

14 

300 

311 

49 

258 

305 

166 

206,  246 


TABLE  OF  CASES. 

[References  are  to  pages.] 


Burwell,  P.  v. 
Bush  V.  S. 

S.  V. 
Buster  r.  Newkirk, 
Butcher,  Keg.  v- 
Butler,  C.  v. 
r.  u. 
V.  S. 
S  V. 
Buttcrfield,  Reg.  v. 
Button,  P.  I'- 

Keg.  V. 
Butts,  P.  V. 

S.v. 
Buxton,  S.  V. 
Buzzo,  U.  S.  V. 
Bykerdyke,  Rex  v. 
Byrum,  S.  v. 


Cabbage,  Rex  v. 
Cabe,  CodJ  v. 
Cady  V.  S. 
Cagle,  S.  V. 
Cahill  r.  P. 
Cain  V.  S. 
S.  V. 
Calder  v.  Bull, 

S.v. 
Caldwell,  Resp.  v. 

v.S. 
Calef,  C.  V. 
Callioun,  P.  V. 

r.  S. 
California,  Sexton  v. 
Call,  C.  V. 
V.v. 
Callaghan,  C.  v. 
Calye's  Case, 
Cameron,  In  re, 
Camp,  P.  V. 
Camphell  v.  C. 
V.  Jones, 
P.  V. 
Rex  V. 
v.S. 
Canada  v.  C. 
Candle  v.  S. 
Canister  v.  S. 
Cannon,  In  re, 

S.  y. 
Cantieny,  S.  v. 
Capps,  S.  I'. 
Carabin,  P.  v. 
Cardelli,  S.  v. 
Carey,  C.  v. 
Reg.  V. 
Cargill,  S.  v. 


Carlile,  Rex  v. 

\  Carlisle  v.  U.  S. 

1  Carll,  U.  S.  V. 

Carlton,  P.  v. 

Carniichael  v.  S. 

I  Carpenter  i-.  P. 

V.  S. 
[  Carr  v.  Hood, 
Reg.  V. 
Rex  V. 
Severance  v. 
V.  S. 
Carrier's  Case, 
1  Carroll,  Rex  v. 

I  Carron,  S.  v. 
Carrotti,  v.  S. 
I  Carter,  Estes  v. 
V.v. 
S.  w. 
1  Cartwriglit  v.  Green, 
V.  S. 
Cartwright's  Case, 
Carver  v.  Pierce, 

S.  0. 
Carwile  i".  S. 
I  Caryl,  P.  i'. 
Casat  I'.  S. 
Case,  Reg.  v. 

V.  S. 
I  Casey,  C.  V. 
I  Cash  V.  S. 
1  Caspar,  Reg.  v. 
Cassida,  S.  v. 
Cassidy,  C.  v. 
,  Castello,  S.  v. 
I  Castro  V.  Reg. 
Caswell,  P.  V. 
Catlin,  C.  v. 
v.  Henton, 
1  Caton,  Reg.  v. 
I  V.  Stewart, 

Caulkins  v.  Whisler, 
Caverly,  S.  v. 
Cay  wood  v.  C. 
,  Central  Ry.  Co.  v.  Sheftall 
Chace,  C.  v. 

S.  r. 
I  Chamberlain  v.  P. 
Reg.  V. 
S.  V. 
Chambers  i'.  S. 
I         S.v. 
Chambless  v.  S. 
Champer  v.  S. 
Champlin.  Reg.  v. 
!  Chance,  C  v. 
1  Chandler,  S.  v. 


XIX 


159,  IGl 
122 
3,  101 
213 
184 
189,  210 
134 
158 
83 
294 
281 
62,  202 
262,  276 
51 
68,  208,  220 
182 
187,  189 
182 
2,  4,  195 
296 
84 
270 
50 
142 
256 
22 
147 
198 
48 
201 
262 
118 
147 
319 
193 
11 
23 
105 
319 
192 
22 
76 
124 
325 
99 
35 
158 
256 
156 
135 
226 
135 
281 
260 
201 
199 
233 
37 
1,  134, 180 


XX 


Chapin,  C.  v. 

S.  V. 
Chapman,  C.  v. 

Keg.  v. 

Resp.  i: 

V.  S. 
Chappie,  Reg.  z>. 
Charlton's  Case, 
Chase,  C.  v. 

V.  r. 

Clieadle  v.  Buell, 
Cheafor,  Reg.  v. 
Cheesenian,  Jn  re. 

Keg.  V. 
Ciieney,  C.  v. 
Chenoweth,  S.  v. 
Cherry  v.  S. 
Cherry's  Case, 
Chesley,  C.  v. 
Cheyney,  C.  v. 
Cliick  V.  S. 
Child  V.  Affleck, 

Trist  V. 
Chisni  V.  S. 
Chlssers,  Kex  v. 
Ciiittenilen  v.  Brady, 
Ciiitty,  S.  V. 
Chivis,  Clement  v. 
Choice  i".  S. 
Chopin,  S.  V. 
Christopher,  Reg.  v. 
Chrystal  v.  C. 

P.  V. 
Chunn,  S.  v. 
Church,  8.  c. 
Ciiurchiil,  C.  v. 

Guy  V. 
Claasen  v.  U.  S. 
Chiir,  C.  V. 
Clancy,  Terr.  v. 
Clap,  C.  V. 
Clarence,  Reg.  v. 
Clarissa,  S.  v. 
Clark,  III  re, 

V.  Binney, 

C.  r. 

r.  r. 

Pitman  r. 

V.  S. 

Re.x  V. 

S.  I'. 

U.  S.  V. 
Clarke,  Martin  r. 

c.  S. 
Clarke's  Case, 
Clason,  Lyle  v. 
Clcaveland  v.  S. 
Cleaves,  S.  v. 
Clem  c.  S. 


TABLE   OF   CASES. 
[References  are  to  pages.] 


11 
75,  82 
1,  2,  3 
166 
120 
206,  259 
78 
140 
10-4 
48 
276 
257 
140,  143 
166, 167 
64 
35 
188 
260 
109 
42 
209 
158 
125 
232 
278 
140 
128 
154 
.  47,  53 
228 
269 
34 
138 
309 
11 
3 
128 
104 
111 
141 
154,  155,  157 
19,  199,  202 
166 
88 
159 
67 
187,  214 
141 
167,  232,  251 
281 
175,  246,  317,  318 
02 
120,  130 
280 
143 
157 
127 
42 
78 


Clement  v.  Chivis, 

Rex  V. 
Clements  i\  S. 
Clew,  U.  S.  V. 
Cleveland,  Larney  v. 
Click  V.  S. 
Clifford  V.  Brandon, 
Reg.  V. 
S.v. 
Clinton,  Keg.  '•. 
Clive,  Vertue  v. 
Closs,  Reg.  V. 
Clough,  P.  V. 
Clyncard's  Case, 
Coats  V.  P. 
Cobel  V.  P. 
Cochran,  Leahan  v. 
Cockayne  r.  Hodgkisson, 
Cockran,  S.  v. 
Codd  V.  Cabe, 
Codd's  Case, 
Codrlngton,  Rex  v. 
Cody,  S.  V. 
Coe,  C.  V. 
Coffman  v.  C. 
Cogdell,  P.  V. 
Cohen  v.  New  York, 

Reg.  V. 
Cohn  V.  P. 
Colbert  v.  S. 
Colby  1-.  S. 
Cole,  P.  V. 
S.v. 
U.  S.  V. 
Coleman,  Rex  v. 

S.v. 
Colhoun,  Reg.  v. 
Colip  V.  S. 
Collberg,  C.  v. 
Collins  V.  C. 
C.v. 
V.  P. 
F.v. 
V.  Ralli, 
Reg.  V. 

V.  S.  71 

Colly,  S.  V. 
Combe  V.  Pitt, 
Combes's  Case, 
Comptois,  Anderson  v. 
Conally,  S.  v. 
Conant,  U.  S.  v. 
Conde,  Keg.  v. 
Cone,  Newkirk  i'. 

S.  v. 
Coney,  Reg.  v. 
Congdon.  Remington  v. 
Conklin,  Wickliam  v. 
Conner,  U.  S.  v. 


154 
141 

61 
292 
96 
190 
149, 174 
71 
269 
255 
173 
313,  321 
305 
92 
294 
191 
161,  164 
158 
135 
90 
157 
309 
210 
305,  322 
227,  228 
270 
161 
265 
321 
308 
234 
227,  308 
108 
174 
312 
25,  49,  77 
276 
296 
20,  199 
118 
102,  264,  267 
118 
18 
312 
167 
133,  182,  265 
301 
124 
323 
141 
207 
112 
32,  226 
129 
183 
20 
158 
128 
56,  135 


TABLE   OF   CASES. 

[References  are  to  pages.] 


XXI 


Connolly,  Reg.  v. 

201 

Cowell,  S.  V. 

193 

Robb  ;■. 

88 

Cowen  V.  P. 

308 

Connolly's  Case 

42 

Cox,  McPherson  v. 

131 

Connors  v.  P. 

18,  115 

v.V. 

15,  169 

S.  I'. 

244 

v.S. 

228 

Considine  v.  U.  S. 

8 

S.v. 

5,  193 

Converse,  Stow  v. 

155 

Coy,  In  re, 

84 

Cony,  C.  V. 

126 

Craige,  S.  v. 

260 

Cook,  C.  V. 

135,  189 

Crawford  v.  S. 

185,  308 

P.  V.                          67,  78 

132,  802 

S.  i;. 

48,  186,  248 

v.V. 

137 

Crayton  v.  S. 

323 

V.  S.                       114,  182, 

103,  301 

Creevey,  Rex  v. 

159 

U.  S.  V. 

101 

Creigliton  v.  C. 

m 

Cooke,  Reg.  v. 

37 

Crews  V.  S. 

237 

Coolidge,  U.  S.  v. 

4 

Crissie,  P.  v. 

302 

Coonibes,  Rex  v. 

82 

Crocheron  v.  S. 

273 

Coombs,  S.  V. 

285 

Crocker  v.  S. 

5 

Coon,  P.  V. 

10,  126 

Croghan  v.  S. 

186,  233 

Cooper  V.  C. 

272 

Cross,  Rex  v. 

164 

C.  i;. 

118 

Crosswell  v.  P. 

233 

V.  Greeley, 

153,  154 

P.  V. 

154 

V.  P. 

141 

Croswell,  Thomas  v. 

155,  159 

Reg.  V. 

304 

Crothersville,  Pittsburgh  Ry.  Co.  v.  164 

Rex  V. 

68,77 

Crotty,  C.  V. 

144 

V.  Slade, 

125 

Crouse  v.  S. 

12 

S.  V.      5,  12,  15,  111,  168, 

191,  193, 

Crow,  S.  V. 

204 

199,  251 

Crowell  V.  P. 

87 

V.  Stone, 

155 

P.v. 

153 

Copeland,  Reg.  v. 

302 

Crowley,  S.  v. 

24 

Coppenburg,  S.  v. 

319 

Crown  Bank,  In  re. 

141 

Coppersmith,  U.  S.  v. 

8 

Crowner,  S.  v. 

182 

Cordy,  Rex  v. 

321 

Crozier  v.  P. 

186 

Cornell,  P.  v. 

8 

Terr.  v. 

317 

Cornish,  C.  v. 

135 

Cruikshank,  S.  v. 

136,  268 

Reg.  V. 

276 

Crum  V.  S. 

23,  24,  221,  263 

Corn  well  v.  S. 

52 

Crump  V.  C. 

173 

Corporation,  S.  v. 

26 

Rex  V. 

283 

Corrlngton,  Work,  v. 

89 

v.S. 

296 

Corson,  Roscow  v. 

332 

Cruse,  S.  v. 

42 

S.  V. 

103 

Crutciiley,  Rex  v. 

42,70 

Costello,  P.  V. 

118 

Cuffee,  C.  V. 

115 

Costin,  S.  V. 

293 

CuUins,  C.  V. 

83 

Costley,  C.  v. 

221 

Cullum,  Reg.  v. 

297 

Cote  V.  Murphy, 

178 

Culver,  C.  v. 

155 

Cothran  r.  S. 

134 

Cummings,  P.  v. 

311 

Cotteral,  P.  v.                         37 

241,  242 

Cummins  v.  C. 

261 

Coulson,  Reg.  v. 

308,  327 

Be 

24 

Coulter,  Patapsco  Ins.  Co.  v. 

332 

Cunningham  v.  P. 

323 

S.  V. 

139 

P.   V. 

161,  164 

Countee  v.  S. 

20 

Reg.  V. 

80 

Courier,  P.  v. 

200 

v.S. 

24,  45,  48 

Court,  P.  V. 

141 

S.  V. 

233,  295,  298 

S.  V. 

142 

Cupps  V.  S. 

214 

Tomsky  v. 

143 

Curkendall  v.  P. 

240 

Courtney,  P.  v. 

135 

Curley,  U.  S.  v. 

172 

Covington,  S  v. 

17 

Currier  v.  S. 

282,  283 

Coward  r.  Wellington, 

158 

Curry  v.  Walter, 

159 

Cowden,  Benedict  v. 

325 

Curtis  V.  S. 

36 

Cowdery,  S.  v. 

298 

S.v. 

152 

XXll 


TABLE   OF   CASES. 
[References  are  to  pages.] 


Custos  V.  Gwynn, 

13.3 

Cutshall,  S.  V. 

182 

Cutter  V.  S. 

55 

,  56,  126 

Czizek,  S.  v. 

296 

D. 

Dacey  v.  P. 

46,48 

Dadsun,  Reg.  v. 

62 

Daley,  S.  v. 

3,117 

Dalton,  P.  V. 

274,  302 

v.S. 

17 

Dalloway,  Peg.  v. 

23 

Dalrymple,  P.  v. 

22 

Daiiioii's  Case, 

97 

Danforth,  S.  v. 

1 

V.  Streeter 

129 

Danger,  Peg.  v. 

306 

Dant,  Keg.  i\ 

33 

Danville,  &c.  P.  P.  Co.  v. 

C. 

162 

Darby,  Matter  of, 

140 

Peg.  17. 

10 

Darling  v.  Williams, 

228 

Dascom,  C.  v. 

108 

Daum,  Eniig  v. 

240 

Daunt,  Pex  v. 

61 

Davidson  v.  C. 

168,  232 

V.  S. 

138 

S.v. 

114 

Peg.  V. 

272 

Davies,  Pex  v. 

319 

V.  Stowell, 

128 

Davies's  Case, 

235 

Davis,  C.  V. 

95, 

128,  292 

P.  V. 

41, 

191, 324 

Peg.  V. 

24,  52,  302 

Pex  V. 

248 

r.  S.       45,  48,  52,  82 

195, 

200,  214 

S.  r.           51,76,197, 

202, 

203,  287 

Tennessee  v. 

85 

V.  U.  8. 

48 

U.  S.  ;•. 

82,  255 

V.  Wliitridge, 

150 

DawoU,  P.  V. 

185 

Dawley  v.  S. 

118 

Dawson,  Rex  v. 

330 

Day,  Pep.  v. 

197 

Dayton,  8.  v. 

134,  1.35 

Dean,  C.  i-. 

175 

v.S. 

281 

S.  r. 

269 

Den  no.  Peg.  i\ 

107 

Deaton,  In  re, 

139 

Dc'bardi'leben  r.  S. 

55 

Dc  Hare,  U.  S.  v. 

820 

De  I'.eauvoir,  Pex  v. 

138 

De  Perangcr,  Pex  v. 

173 

Decklott.s,  S.  V. 

37 

Dec,  Peg.  I'. 

232 

Deele}',  Pex  v. 
Deerfield,  C.  v. 
De  Fore,  P.  v. 
Defrese  v.  S. 
De  Hart,  S.  v. 
Dejarnette  v.  C. 
Delaniirie,  Amory  v. 
Delaney,  Ex  parte, 
Delano,  Re, 
Delany  v.F. 

V.  S. 
Delaval,  Pex  v. 
Delaware  Canal  Co.  v.  C. 
De  Lay,  S.  v. 
De  Longchamps,  Pesp.  v. 
Delyon,  S.  v. 
Demain,  C.  v. 
Dennie,  C.  v. 

Pesp.  i\ 
Dennis,  C.  v. 
Dennison,  Kentucky  v. 
Denniston,  R.  v. 
Dent,  V.  S. 
Denton,  S.  v. 
D'Eon,  Pex  v. 
De  l!ai:ce,  S.  v. 
De  Putzcn,  Sherras  v. 
Desmarteau,  C.  v. 
Despard,  Pex  v. 
Detroit  White  Lead  Works,  P 
Dewev,  Gibbs  i'. 
De  Witt,  S.  V. 
De  Wolfe,  S.  v. 
Dickens,  S.  v. 
Dickenson  v.  S. 
Dickie,  P.  i". 
Dickinson,  Pex  v. 
Dickson,  Pascagoula  Boom  Co 
Dierbergcr,  S.  i-. 
l)i  Giiglielnio,  S.  f. 
Dilger  r.  C. 
Dill  V.  S. 
Dillard  v.  S. 
Dillon  P.  V. 

8.  V. 
Dimond,  C.  v. 
Din^lcv,  Pex  v. 
Dinkey  r.  C. 
Dislion  V.  Smith, 
Dixon,  Gearhart  v. 

Rex  V. 

U.  S.  V. 
Doan  I'.  S. 
Doane,  C.  v. 
Dobb's  Case 
Dobree  v.  Napier, 
Doopke,  8.  V. 
Doliertv,  Peg.  v. 

8.  r. 


97 

164 

188 

265,  269 

307 

46 

271 

1 

142 

12 

242 

12 

43 

801 

1 

314 

191 

126 

153 

170 

87 

155 

74 

296 

154 

49 

53 

98 

79 

.  V.     164 

131 

172 

3,84 

57 

208 

326 

283 

.  V.     161 

61 

51 

213 

174 

192 

49 

66 

288,  290 

274 

186 

124 

10 

11,27 

12 

78 

281 

30 

80 

254 

50 

40,  73 


TABLE   OF   CASES. 
[References  are  to  pages.] 


XXlll 


Doliring.  P.  v. 

232, 

233 

Dunston,  Rex  v. 

137 

])<)ig,  lie, 

34 

Dupee,  Rex  v. 

315 

Dolan,  Reg.  v. 

320 

Dupre,  P.  V. 

245 

Donahue,  C.  v. 

67 

Durfee  v.  Jones, 

270 

Donaldson,  S.  v. 

173 

Durham  v.  P. 

111 

Don  Moran  v.  P. 

232 

Dye  V.  C. 

56 

Donnally's  Case, 

235,  236, 

237 

Dyer,  S.  v. 

173 

Donnelly,  S.  v. 

65 

Dykes,  Reg.  v. 

42 

Donovan,  C.  v. 

98 

Dyson,  Rex  v. 

212 

S.  V. 

325 

Doody,  P.  V, 

136 

E. 

Heg.  V. 

61 

170 

Dooley,  S.  v. 

67 

Eagan,  C.  v. 

41 

Dorr,  S.  i'. 

309 

Eagleton,  Reg.  v. 

166 

311 

])()rsey,  U.  S.  v. 

18 

Earl,  S.  I'. 

140 

Doss  r.  P. 

265 

Eaton  V.  West  Virginia, 

88 

Doty,  S.  V. 

140 

Eckels  V.  S. 

260 

Doud,  S.  V. 

144 

Eckert,  C.  v. 

10 

Dougherty,  C.  v. 

198 

Eckler,  S.  v. 

187 

Douglas,  Rex  v. 

301 

Edgecombe  v.  Rodd, 

22 

Douglass,  C.  V. 

138 

Edgerton,  Loorais  v. 

315 

V.  S. 

164 

Edmonds  v.  S. 

261 

S.  1-. 

17 

Edwards,  C.  v. 

14 

Dove  V.  S. 

48 

Reg.  V. 

32,  235 

254 

Dowe,  S.  V. 

300 

Rex  V. 

236, 

313 

Dowers,  S.  v. 

12 

Edyvean,  Rex  v. 

142 

Dovvnes,  Reg.  v. 

26,  35 

Egerton,  Rex  v. 

235 

Downs,  S.  V. 

53 

Eggington,  Rex  v 

17,18 

Downing,  C  v. 

79 

Eichar,  C.  v. 

20 

S.  r. 

147 

Eisenhower,  C.  v. 

24 

Doyle,  C.  v. 

99 

Eldersliaw,  Rex  v. 

41 

S.  V. 

234 

Eldridge,  Matter  of. 

142 

Dozier  v.  S. 

285 

Ellicke,  S.  v. 

218 

Drennan  v.  P. 

8 

Elliot  V.  McClelland, 

128 

Dresser,  S.  v. 

112 

Elliott,  Reg.  I'. 

o 

2,  35 

Drew,  C.  v. 

300,  304 

307 

Ellis  V.  S. 

116 

164 

U.  S.  V. 

52 

S.  V. 

10 

124 

Drewer,  S.  v. 

8 

Elmore  v.  S. 

308 

Driggs,  U.  S.  y. 

126 

Elsmore  i:  St.  Briavels, 

241 

DriscoU,  Reg.  v. 

207 

Elwes  V.  Gas  Co. 

271 

Drum,  C.  v. 

214 

228 

Ilwood,  Wylie  v. 

163 

Drury,  Reg.  v. 

107 

Emig  V.  Daum, 

240 

Druxinman,  S.  v. 

320 

Emmett  v.  Lyne, 

203 

Dubois,  Moses  v. 

231 

Empcy,  S.  v. 

74 

Powers  V. 

155 

Empson  v.  Bathurst, 

126 

Ducker,  S.  v. 

272 

Engemau,  S.  v. 

77 

Diidash,  C.  v. 

51 

England,  P.  v. 

44 

D alley,  C.  i'. 

151 

I'-nnis  r.  S. 

275 

Res.  v. 

69 

Errington's  Case, 

213 

Duffin,  Rex  v. 

35 

191 

Erwin  r.  S. 

226 

Dugdale  V.  Reg. 

5 

Esop,  Rex  V. 

54 

])uhammel,  S.  v. 

22 

Este,  C.  V. 

296 

Dukes  V.  S. 

290 

Estell  V.  S. 

29 

]Juiiean  v.  C. 

199 

Estes  V.  Carter, 

2,4 

195 

1-.  S. 

64,316,317 

318 

S.  V. 

SOI 

Dunn  V.  P. 

' 

192 

Evans  v.  P. 

191, 

211 

Perine,  v. 

129 

P.  v. 

138 

V.  S. 

284 

Reg.  V. 

2()3 

Rex  I'. 

325 

Evanston  v.  Myers, 

19 

XXIV 


TABLE   OF   CASES. 
[References  are  to  pages.] 


Everett,  Rex  v. 

124 

Finn,  C.  v. 

287 

Evers  v.  P. 

207 

Finncgan,  C.  r. 

59 

S.v. 

300 

Finnerty,  Rex  v. 

62 

Eversole  v.  C. 

05 

Finney,  Heg.  v. 

34 

Everson,  C.  v. 

55 

Firth,  Reg.  v. 

262 

Eyre,  C.  c. 

204 

Fish,  P.  V. 

313 

Eyres,  Rex  v. 

126 

Fisher  v.  C. 

112 

V.  McDaniel, 

141 

F. 

F.v. 

173 

V.  S. 

149 

,249 

Faliey,  S.  v. 

188 

S.  V. 

149,  263 

281 

Fair,  He, 

62,  85 

Fisherman's  Case, 

238 

282 

Faircloiigh,  S.  v. 

275,  276,  277 

Fitch,  P.  V. 

326 

Fairie,  Reg.  v. 

164 

Reg.  I'. 

281 

Fairnian  v.  Ives, 

158 

Fitchburg  R.  R.,  C.  v 

104 

Fann,  S.  v. 

273,  275 

Fitzgerald  v.  S. 

263 

Fanning,  S.  v. 

147 

S.  V. 

191 

Farez,  In  re, 

86 

Fitzpatriek,  S.  v. 

280 

Farr,  Rex  v. 

245 

Fizell  V.  S. 

200 

Farral,  Rex  v. 

260 

Flack,  P.  V. 

80 

Farrell  v.  P. 

277,  282 

Flagg,  C.  V. 

15 

v.S. 

233 

Flanary,  Powell  v. 

22 

Farren,  C.  v. 

59 

Flanagan  i)  P. 

45,48 

Farrer  v.  S. 

47,  190 

r.  S. 

217 

Farrier,  S.  v. 

169 

Fianigan  v.  P. 

49,  53 

Farris  v.  C. 

213 

Flattery,  Reg.  v. 

232 

Farrow,  S.  v. 

271 

Fleener  r.  S. 

20 

Faulkner,  Keg.  v. 

38,  243 

Fletcher  v.  P. 

231 

S.v. 

130 

Reg.  V. 

201 

233 

V.  Terr,    ' 

48 

Rex  V. 

276 

277 

Ilenslow  V. 

124 

S.  0. 

4 

Fawcett,  Rex  v. 

313 

Flowers,  Reg.  v. 

272 

Fay  V.  C. 

309 

Floyd  V.  S. 

66 

Fayerweather  v.  Plienix 

Ins.  Co.      332 

Flynn,  C.  v. 

263 

Featlierstone,  Reg.  v. 

281 

V.  S. 

288 

Felix  I'.  S. 

218 

S.v. 

318 

Felker,  Stearns  i-. 

130 

Foley,  Reg.  v. 

258 

Felter,  S.  v. 

46,49 

Fonville  v.  McNease, 

157 

Felton  V.  U.  S. 

317 

Fooks,  S.  ('. 

309 

Fenn,  S.  v. 

284,  285 

Foote,  S.  ('. 

318 

Feiinc'il  V.  S. 

194 

Forbes,  Reg.  v. 

30 

Fenton's  Case, 

33 

Ford,  C.  V. 

207 

Fcrens  v.  O'Brien, 

254 

Rex  V. 

213 

Ferguson  v.  KinnouU, 

37 

U.  S.  V. 

21 

V.  S. 

176,  187,219 

Fort  r.  S. 

283 

S.  V. 

227 

Foster  v.  C. 

168 

232 

Ferris  v.  P. 

106 

C.v. 

295 

324 

Field  ';.  C. 

64 

Kirby  v. 

298 

V.v. 

151,  1.52 

V.  P. 

209 

Fields  V.  S. 

284 

Reg.  V. 

2(13 

Fifty  Associates  v.  IIow 

land,            150 

S.  V. 

56,  111, 

245 

Filkins  v.  V. 

67 

Fowler,  P.  v. 

29 

Fincli  V.  C. 

244 

V.  S. 

192 

Findlay,  S.  v. 

18G 

Fo.\,  C.  V. 

224 

FindU-y,  S   v. 

296 

r.  Ohio, 

85 

329 

Fink  r.  Milwaukee, 

96 

LT.  S.  V. 

6 

Finkclstein,  Reg.  v. 

82,  263,  328 

Fove,  U.  S.  V. 

287 

Finlay,  U.  S.  v. 

3 

FrAlich  V.  P. 

217 

Finlev,  P.  v. 

48 

Francis,  Rex  i'. 

234, 

290 

TABLE   OF   CASES. 

XXV 

[References  are  to  pages  ] 

France  v.  S. 

324 

Gearhardt,  C.  v. 

45 

Franco  v.  S. 

248 

Gearliart  v.  Dixon, 

10 

Frank  v.  S. 

176,  320 

Geier  v.  Shade, 

22 

Franklin,  Bentinck  i-. 

129 

Genz  V.  S. 

45 

lies-  r. 

28 

George,  S.  v. 

40 

r.  S. 

24 

German,  S.  v. 

116 

Franklin  Falls  Co.,  S.  v. 

162 

Gessert,  S.  v. 

82 

Fraser  v.  S. 

55 

Getchell,  P.  v. 

305 

Frates,  C.  v. 

99 

Gherkin,  S.  v. 

323 

Frazer  v.  P. 

192 

Gibbs  V.  Dewey, 

131 

Frazier  v.  S. 

263 

V  V. 

187 

Freeman  v.  P. 

48 

Reg.  V. 

273,  296 

S.v. 

146 

Gibert,  U.  S.  v. 

106,  108,  331 

U.  S.  V. 

224 

Gibson  v.  C. 

32 

Freer,  P.  v. 

140 

v.S. 

65,  133 

Frihly  u.  S. 

22 

S.  V. 

189,  207 

Friscli,  S.  V. 

20 

Gilbanks,  Beatty  v. 

11 

Fritz,  S.  V. 

147 

Gilbert,  Rex  v. 

268 

Fulgham  v.  S. 

198 

S.  V. 

261 

Fuller,  Goodspecd  i-. 

128 

Giles,  Reg.  v. 

802 

Kex  V. 

166,  237 

V.  S. 

154,  157 

Funderburk  v.  S. 

818 

Gill  V.  Bright, 

273 

Furlong,  S.  v. 

133,  287 

Rex  V. 

174,  208 

Furney,  S.  v. 

176 

Gilligan,  S.  v. 

318 

Fuse  Co.,  Kleebaur  v. 

10 

Gillon,  C.  V. 

98 

Gillow,  Rex  v. 

37 

Gilnian,  P.  v. 

174 

G. 

S.v. 

214 

Gilmore  v.  P. 

24 

Gaige,  P.  v. 

132,  138 

Girard's  Exrs  ,  Vidal  f 

1 

Gallagher  v.  V. 

172 

Girkin,  S.  v. 

209,  210 

V.  S. 

207 

Gise  V.  C. 

184 

Gallears,  Reg.  v. 

257 

Glassie,  Reg.  v. 

280,  281 

Galvin  u.  S 

220 

Glidden,  S.  v. 

173 

Gamble  v.  S. 

147 

Glover  V.  C. 

169 

Gamlen,  Reg  v. 

51 

C.v. 

79,  251 

Gann  v.  8. 

216 

P.  r. 

66 

Gannon,  /«  ;e, 

143 

Gnosil,  Rex  v. 

234 

Garbutt,  P.  v. 

48.49 

Goddard,  C.  v. 

112 

Gardiner  v.  S. 

268 

Godfrey  v.  P. 

209,  210 

Gardner  v.  P. 

143 

Reg.  V. 

286 

P.   V. 

167 

V.  S. 

40 

Reg.  y. 

281,  284,  310 

S.v. 

206 

Rex  y. 

235 

Godwin,  S.  v. 

56 

V.  S. 

197 

Goforth  V.  S. 

56,  316,  318 

S.  t'. 

56,  219 

Goin,  S.  V. 

40 

Garland,  S.  v. 

140 

Golden  v.  S. 

198 

liex  r. 

249 

Goldman,  S.  v. 

321 

Garnett,  C.  v. 

74 

Goldsberry  v.  S. 

319 

Garrett,  Kirk  v. 

282 

Golonbieski  v  S. 

259 

S.  V. 

61,  116 

Gompertz,  Reg  v. 

175 

Garris,  S.  i'. 

5 

Gondall  V.  S. 

64 

Garvey,  S.  v. 

50 

Goodbody,  Reg.  v. 

273 

Gas  Co.,  Elwes  v. 

271 

Goode,  Reg.  v. 

279 

Gates,  P.  V. 

12,  239,  241 

S.  V. 

76 

S.  V. 

134,  136,182 

Gondenongli,  C.  v. 

327 

Gatliercole's  Case, 

156 

Goodenow.  S.  r. 

27,  58,  182,  185 

Gaylor,  Reg.  u. 

77 

Goodhall,  Rex  v. 

301 

Gazell,  S.  v. 

260 

Goodrich,  P.  v. 

142 

XXVI 


TABLE   OF   CASES. 

[References  are  to  pages.] 


Goodrich,  S.  v. 

183 

Goodspeed  v.  Fuller, 

VIS 

Goodwin,  C.  r. 

ini 

V.S. 

4G 

Goodwyn  v.  S. 

2!)3 

(jioold,  S.  V. 

156,  1<J8 

Gordon  v.  C. 

32(3 

P.  V. 

ly 

Keg.  V. 

301 

V.  S. 

232 

Gore  V.  S. 

233 

Gore's  Case, 

30,  38,  214 

Goree  v.  S. 

11 

Gorliam,  S.  v. 

202,  234 

Gorman  v.  S. 

198 

S.  V. 

237,  285,  287 

Gosha  V.  S. 

233 

Gosler  v.  S. 

270 

Gosnell,  S.  i'. 

61 

Goss,  Reg.  V. 

301,  303 

Gould,  P.v. 

20 

Reg.  V. 

110 

Kex  V. 

290 

V.  S. 

188 

Goulette,  P.  r. 

233 

Gowen  v.  Nowell, 

128 

Kex  V. 

241 

Grady,  C.  v. 

807 

S.v. 

75 

Graff  V.  P. 

175 

{Jraliani,  S.  v. 

21,  163 

(jranice,  P.  v. 

80 

Gratit,  C  V. 

186 

(iraiitliam,  Kex  v. 

314 

Ciravely  v.  S. 

69 

Gray  v.  C. 

114,  117 

Kex  V. 

172 

Stevenson  v. 

184 

Grear,  S.  v. 

62 

Greatlioad,  l?eg.  v. 

310 

(Jreatliouse,  U.  S.  v. 

121 

Great  Works  S.  v. 

43 

(jreeley,  Cooper  v. 

153,  154 

Green,  Cartwriglit  v. 

270 

V.  C. 

215 

C.  f.                 41, 

107,  108,  168,  232 

IMerry  ;•. 

270 

Reg.  V. 

255 

V.  S. 

82,  14:\  244,  2',)0 

Grcenacre,  Rex.  v. 

74.77 

Greene,  (-.  ?;. 

279,  281) 

(iiiardians  i;. 

2 

/.v. 

4 

V.  S. 

46 

Greenfield,  TJurget  i'. 

Itil 

Greenleaf,  S    v. 

210,216 

Greenongli,  lu  yp. 

308 

Green  Willi,  1'   v. 

117 

Greenwood,  Keg.  v. 

76,  213 

Gregory  v.  Ilill, 

V.  S. 
Grey,  C.  v. 

Keg.  V. 
Grev's  Case, 
Griffetli,  P.  v. 

Reg.  V. 
Griffin,  P.  v. 

V.  S. 

S.  r. 
Griggs  V.  S. 
Grimes  v.  S. 
Grisliam  v.  S. 
Grosslieiin,  S.  t'. 
Grugin,  S.  v. 
Grunson  v.  S. 
Guardians  v.  Greene, 
Guedel  V.  P. 
Guenther  v.  P. 
Guernsey,  Keg.  v. 
GufEee  r.  S. 
Guiteau,  U.  S.  v. 
Gunter  v.  S. 
Guntlier,  U.  S.  v. 
Gurnesy,  Keg.  v. 
Gut,  S.  V. 
(iuy  V.  Churchill, 
Gwinn,  Custodes  v. 


H. 


150 
71 
95 

12 

213 

249 

73 

246 

166,  187,  188 

204 

269 

251 

12 

200 

218,  219 

278 

2 

109 

108,112 

37 

67 

45,82 

48 

210 

282,  287 

211 

158 

138 


riaab,  S.  V. 

52 

Ilaase  /■.  S. 

157 

Habersham  v.  S. 

144,  145 

Ilac'keit,  C.  i\ 

24 

,  27,  221 

Hackney  v.  S. 

2 

Haddcn  r.  P. 

190 

Iladley,  C.  v. 

43,  71 

c.'s. 

213 

llaggertv,  P.  v. 

24:J 

Ilahn  v.'V. 

' 

246 

Haigh,  Ik'g.  v. 

285 

Haiie  V.  S. 

52 

Haines,  C.  v. 

11 

K'eg.  V. 

23 

,  33,  226 

Wvx  V. 

244 

Hair,  S.  v. 

210 

Hale  r.  S. 

141 

Halford,  IJeg.  v. 

281 

Hail,  Maker  c. 

188 

Reg.  V. 

283 

Rex  i;. 

55 

V.  S. 

12,  281 

S  r.     10,  89, 

134,258,263, 

268, 277 

U.  S    r. 

84, 

137,  138 

TIallett,  Keg.  v. 

200 

Hallida\',  Keg.  v. 

222 

Halloway,  Kex  v. 

212 

TABLE   OF    CASES. 


XXVll 


[References  are  to  pages.] 


Hall's  Case, 

161 

Halstead  v.  S. 

5.5 

HUy,  Rex  v. 

132 

Ham  V.  S. 

89 

Hamaker  v.  Blancliard, 

271 

Hamby  r.  Sampson, 

257 

Hamilton  v.  P. 

118 

V.  Reg. 

302 

Kex  V. 

289,  290 

V.  S. 

167,  286,  287 

S.  V. 

8  73,  133 

Hamniond,  Rex  v. 

173 

S.  i: 

20 

Hampton  v.  S. 

184 

Hancock,  Reg.  v. 

245,  246 

Hand,  U.  S.  v. 

197 

Handley,  P.  v. 

241  ! 

Reg.  V. 

32 

v.S. 

62,  176 

Hands,  Reg.  v. 

261 

Hanks  I'.  S. 

84 

Hanley,  S.  v. 

49 

Hanlon,  S.  i\ 

289 

Hannum,  Resp.  v. 

125,  126 

Hanselnian,  P.  v. 

16 

Hanson,  Pike  v. 

203 

Reg.  V. 

202 

Rex  V. 

315 

S.v. 

21 

Hanway,  U.  S.  v. 

121 

Hardcastle  v.  S. 

218 

Hardeman  v.  S. 

261 

Hardie,  S.  v. 

34 

Hardiman,  C.  v. 

111 

Hardin  v.  Silvari, 

139 

V.  S. 

200 

Harding's  Case, 

150 

Hardister,  S.  v. 

34,  226 

Hardwicke,  Re, 

142 

Hardy  v.  S. 

26 

Har grave,  S.  v. 

231 

Harkins,  C.  v. 

311 

Harland  v.  Terr. 

89 

Harley,  C.  v. 

35 

Harlot's  Case, 

223 

Harm  an 's  Case, 

234 

Harmon,  Rex  v. 

288 

U.  S.  V. 

26 

Harrington,  C.  v. 

12,  96,  102 

Harris,  Layton  v. 

156 

Reg.  V. 

240,  297 

Rex  V. 

166,  249,  327 

V.  S. 

263,275,312 

S.  V. 

224,  228 

Harrison  v.  P. 

162,  260 

Reg.  1-. 

281 

Rex  V. 

125 

V.  S. 

40.  308 

S.  y. 

45,57 

Harrison  v.  U.  S. 

8 

Harrison's  Case, 

280 

Harrodslmrg,  iMercer  Co.  v. 

164 

Hart  V.  Albany, 

164 

S.  t-. 

11,  162 

U.  S.  V. 

10 

Hartford  St.  Ry.  Co.,  S.  v. 

162 

Hartman  v.  Aveline, 

88 

P.   17. 

185 

Hartigan,  S.  v. 

169 

Hartnett,  C.  v. 

290,  322 

Hartung  v.  P. 

3 

Harvey,  Reg.  v. 

273 

V.  Terr. 

187 

Harvick  v.  S. 

36,  167 

Haskell,  S.  v. 

83 

Haskins.  S.  v. 

157 

Hass,  White  v. 

323 

Hatfield,  C.  V. 

134 

Hattaway,  S.  v. 

137 

Hause,  S.  v. 

318 

Havander,  Lancy  v. 

130 

Hawkins,  C.  i'. 

49 

P.  V. 

296 

Reg.  V. 

51,  292 

v.S. 

147 

S.v. 

286 

Todd  r. 

158 

Hawkswortli,  Bridges  v. 

271 

Havvtin,  Reg.  v. 

274 

Hayes  v.  P. 

184 

S.v. 

18 

Haygood  v.  S. 

189 

Haynes,  P.  v. 

306,  309 

Reg.  V. 

45 

Haynes's  Case, 

254 

Hays,  C.  v. 

291,  297 

v.¥. 

200 

Hayward,  Reg.  i;. 

274 

Rex  V. 

219 

S.  V. 

132 

Haywood  r.  S. 

257 

Hazard,  S.  v. 

319 

Hazen  v.  C. 

174, 175 

Head  v.  Martin, 

62 

Heard  v.  S. 

240 

Heath,  Reg.  v. 

273 

Rex  V. 

5 

Hecker,  P.  v. 

65 

Heckman  v.  Swartz, 

22 

Hedley,  Ex  parte, 

297 

Heed,  S-  v. 

187 

Ileffron,  C.  v. 

100 

Heflin,  S.  v. 

147 

Heliier,  Reg.  v. 

272 

Heilman  v.  C. 

40,41 

Helle.  S.  1-. 

133 

llelmes,  S.  v. 

316 

Helms,  S.  v. 

244 

xxvni 


Helvenston,  S.  v. 
Hemingway  v.  S. 
Heminings,  Reg.  v. 
Hencli,  Kex  v. 
Henderson  v.  C. 

McDonnell  v. 

V.   P. 

I'.  S.  • 
S.  V. 
Hendric'kson  v.  C. 
Hendrix  i'.  S. 
Hennali,  Reg.  v. 
Hennessey,  P.  v. 

S.v. 
Henning  v.  S. 
Henry,  C.  v. 

Sampson  v. 
1         V.  S. 
'         S.  V. 

Wilcox  V. 
Hensler,  Reg.  v. 
Henslow  v.  Fawcett, 
Henson,  Reg.  u. 
Henton,  Catlin  v. 
Herbert,  S.  v. 
Hernandez,  Underbill  v. 
Herreil,  S.  v. 
Herring  v.  S. 
Hersbberger,  C.  v. 
Hescott's  Case, 
Hess,  S.  V. 

Hetberington,  Rex  v. 
Hewlett,  Reg.  v. 
Hewson,  U.  S.  v. 
Hey,  Reg.  (;. 
Hey  wood,  Reg.  v. 
Hibernia  Ins.  Co.,  Kane 
Iliebins,  Young  v. 
Hicklin,  Reg.  v. 
Hickman,  Rex  v. 
Hicks  V.  S. 

S.  V. 
HigdoM,  S.  V. 
Higginbotbam  v.  S. 
Higgins,  Reg.  v. 

Rex  V. 
Higgs,  Blades  v. 

V.  S. 
llildcbrand  v.  P. 
Ilildretb,  S.  v. 
Hill,  Gregory  v. 
V.  S. 
S.v. 
Hilton,  S.  V. 
Hines  v.  S. 
Hinklc  t'.  S. 
Hinton,  S.  v. 
Hitclicofk  r.  Baker 
Uitcbins,  Young  v. 


TABLE   OF   CASES. 
[References  are  to  pages.] 


140 
296 
282 
263 
1.] 
13!) 
189 
298,  324,  326 
154 
223 
208 
5 
292 
291 
218 
300,  306,  326 
150 
280,  289 
245 
102 
166,  305,  307 
124 
10 
22 
244 
80 
65 
194 
148 
126 
73 
180 
39,  66 
46,211 
203,  273 
328 
>.  113 

257 
26 
223 
241,  288 
218 
187 
198,  282 
109 
15,  120 
259 
290 
277 
78,  218 
150 
100,  202,  313 
52,  227 
144 
108 
187 
181 
144 
257 


Hite  V.  S. 

264 

Hjeronymus  v.  S. 

65 

Hoagland,  P.  v. 

281 

Eoare,  Reg.  v. 

295 

V.  Silverlock, 

156 

Hobson  V.  S. 

317 

Hockett,  S.  V. 

217 

Hodges  V.  S. 

157 

U.  S.  V. 

121 

Hodgkins,  P.  v. 

194 

Ilodgkisson,  Cockayne  v. 

158 

Hodgson,  Reg.  v. 

327 

Hoin,  P.  V. 

45 

Hoit,  S.  V. 

227 

Holbrook  v.  S. 

279 

Holden,  Reg,  v. 

136 

Holder,  C.  v. 

83 

S.v. 

257 

Holland,  C.  v. 

234 

Reg.  V. 

24,27 

Rex  V. 

127 

V.  S. 

246 

S.v. 

118 

Holloway,  Reg.  v. 

281 

283 

Rex  V. 

275 

286 

Holly  V.  S. 

216 

Holmes  v.  C. 

75 

100 

C.v. 

118 

153 

U.  S.  V. 

47,69 

Holmes's  Case, 

241 

Holt,  Rex  v. 

39 

Homes,  8.  v. 

281 

Honsehnan  r.  P. 

194 

Hood,  Carr  v. 

158 

V.  S. 

26 

,134 

S.v. 

307 

Hook,  Reg.  V. 

137 

Hooker  v.  C. 

241 

Hooper,  C.  v. 

310 

Hoover  v.  S. 

55 

S.  V. 

227 

Hopkins  r.  C. 

222 

VVemyss  v. 

107 

Hopps  r.  P. 

46 

Hopt  V.  P. 

50 

Hornby,  Reg.  v. 

268 

Home,  S.  v. 

204 

Horsey,  Reg.  v. 

213 

Ilorton,  S.  V. 

2C 

,  188 

Hosbor,  S.  '■. 

298 

Hoskins  r.  Tarrence, 

254 

Hougb,  1'.  r. 

20 

Iloufibton  V.  Baclinian, 

91 

U.  S.  V. 

36 

House,  S.  v. 

257 

Housii  V.  P. 

144 

Howard  v.  C. 

208 

P.  V. 

231 

S.v. 

04,  191 

TABLE   OF  CASES. 
[References  are  to  pages.] 


XXIX 


Howard,  U.  S.  v. 

132 

Ins.  Co.,  Swope  i;. 

22 

Howe,  C.  c. 

116 

Ion,  Reg.  V. 

328 

P.    V. 

295 

Irwin,  C.  v. 

90 

Howell,  Rex  i\ 

276 

Isaacs,  C.  v. 

12 

Howerton,  S.  v. 

235 

Rex.  V. 

242 

Howland,  Fifty  Ass.  v. 

150 

Isliam  ('.  Broderick, 

164 

Hoxey,  C.  i\ 

10 

v.S. 

80 

Hoxie,  U.  S.  V. 

121 

Ives,  Fairman  v. 

158 

Huber,  S.  v. 

278 

Hudson,  C.  V. 

25 

J. 

Rejj.  V. 

24 

U.  S.  V. 

4 

Jackson  v.  P. 

303,  304 

HuPijin,  S.  V. 

173 

P.   V. 

12,  299,  312 

Huff,  S.  I'. 

25 

Rex  V. 

266,  314 

Hugget's  Case, 

220 

V.  S.         62,  112 

182 

,  234,  258,  259 

Hug,?ins  I'.  P. 

320 

S.v. 

124,  149 

Rex  V. 

32,  71 

U.  S.  V. 

12 

Hughes,  Reg.  v.     32,  138 

231 

,  293,  319 

Jackson's  Case, 

138 

Rex  I'.                      41, 

I4y 

248,  273 

Jacobs,  P.  V. 

303 

Rotliermal  v. 

22 

Reg.  V. 

272 

S.v. 

188 

Rex  V. 

194 

Huglies's  Case, 

235 

Jailer,  U.  S.  v. 

61 

Hull,  Rex  V. 

226 

James  v.  C. 

2 

S.  V. 

198 

C.v. 

116,  275,  276 

Hull's  Case, 

32 

Reg.  V. 

98,  205 

Humphreys  v.  S. 

47,  53 

V.  S. 

281 

Humpliries,  C.  v. 

234,  237 

James  Wells,  Brig, 

70 

Hunckeller,  P.  v. 

111 

Jaiisen,  S.  v. 

18 

Hundson,  Rex  v. 

256 

Jarvis,  Reg.  v. 

115 

Hunt  V.  Adams, 

323 

Rex  V. 

77 

C.  V. 

171 

173,  176 

V.  S. 

219 

Rex  V. 

29 

S.  ;;. 

273 

S.  V.              136,  206, 

214, 

261,  282 

Jasper,  S.  v. 

11 

Hunter,  Reg.  v. 

304 

J.  B.,  S.  V. 

138 

Ross  V. 

332 

Jefferson  v.  P. 

101 

V.  S. 

305,311 

S.  V. 

37,  108 

Huntley,  S.  v. 

10 

Jeffries,  C.  v. 

312 

Hurd  V.  P. 

228 

Rex  V. 

72 

S.v. 

240 

Jellico  Coal  Co.  v.  C 

55 

Hurley  v.  S. 

257 

Jellyman,  Reg.  v. 

194 

Hurst,  P.  V. 

298 

Jenkins,  Reg.  v. 

118,  276,  277 

S.  V. 

305 

v.S. 

241 

Hutchinson,  C.  v. 

169,  279 

S.v. 

133,  249 

Pratt  V. 

160 

Jennings,  S.  v. 

298 

Reg.  V. 

62 

Jennison,  Reg.  v. 

302 

S.  V. 

181 

Jenny,  Taber  v. 

256 

Hutcliison  V.  C. 

254 

•Jesse  V.  S. 

135 

Hiiting,  S.  V. 

45,  49 

Jessop,  Reg.  v. 

307,  308,  327 

Ilyams,  Rex  v. 

244 

Joaquin,  S.  v. 

138 

Hyatt  V.  Wood, 

150 

John,  S.  V. 

235 

Hyer,  S.  v. 

79,  118 

Johns  I'.  S. 
Johnson  c.  C. 

82 
183 

I. 

V.  Ogilby, 
r.  P. 

22 
260,  263 

Illinois,  Ker  v. 

87 

P.   V. 

302, 

311,312,  319 

Moore  v. 

85, 

109,  329 

Reg.  V. 

278 

Innes,  S.  v. 

107,  111 

Rex  V. 

23,  172 

Innis,  Ross  v. 

298 

V.S.     17,-34,175, 

241. 

261,281,300 

Instan,  Reg.  i*. 

33 

S.  V.        45,  46,  48,  50 

,  76,  218,  245 

XXX 


TABLE   OF   CASES. 

[References  are  to  pages.] 


Johnson  r.  Tompkins 

, 

202,  203 

Kelley  ;•.  S. 

87 

V.  Widenian, 

140,  143 

Kellog  I'.  S. 

313 

Johnston  v.  C. 

245 

Kelly  V.  C. 

165 

Reg.  V. 

301 

r.  P. 

116 

S.  V. 

200 

P.  r. 

43,  211,  216 

JoHiffe,  Kex  v. 

141 

V.  Pittsburgh  R.  R. 

163 

Jolly  V.  U.  S. 

256 

Rex  V. 

35 

Jones,  Bird  r. 

203,  231 

S.r. 

84 

Campbell  v. 

129 

Kelso  Co.,  U.  S.  V. 

44 

V.  C. 

50 

,  214,  234 

Kemp  V.  S. 

261 

Durfee  r. 

270 

Kendall,  C.  v. 

117 

V.  Leonard, 

88 

Keneval  ;;.  S. 

183 

v.P. 

217 

Kennard,  C.  v. 

67 

V.v. 

167 

Kennedy  v.  C. 

64 

Reg.  V.         261,  2 

73, 

284, 

286,  299, 

C.v. 

20,  165 

300 

305,  807 

V.  S. 

287 

Rex  V. 

276 

S.  v. 

184,  237 

V.  S.                     2, 

66, 

272 

307,  314 

Kenny,  Reg.  r. 

280,  320 

S.  i;.       36,41,46 

48 

,73, 

163,  210, 

Kenrick,  Reg.  v. 

7,  172,  310 

2.32,  '. 

41. 

260 

282,  313 

Kent,  S.  V. 

3 

Jones,  U.  S.  v.          62, 

78 

237 

290,  330 

Kentucky  v.  Dennison, 

87 

Jones's  Case, 

12 

Kenyon  v.  P. 

186 

Jordan  P.  v. 

303 

Ker  V.  Illinois, 

87 

Heir.  V. 

40,  72 

Kern,  S.  v. 

127 

Journeyman  Tailors,  Rex 

v. 

173 

Kessler,  U.  S.  v. 

118 

Juarez,  P.  v. 

286,  287 

Kew,  Reg.  c. 

23,  32 

Judd,  C.  V. 

173,  174 

Key  V.  Vatter, 

129,  130 

Judge,  Montgomery  v. 

141 

Kejes  V.  P. 

308 

Rockwell  I'. 

257 

Terr.  v. 

168,  200 

S.  V. 

142 

Keyn,  Reg.  v. 

79 

Justice,  Mahon  v. 

8!) 

Kilbourn,  Woodman  v. 

161 

Justices  V.  P. 

279 

Killiam,  Reg.  v. 
Kilpatrick  i\  P. 

311 
14 

K. 

Kilrovv  )'.  C. 
Kimball  v.  S. 

118 
36 

Kanavan's  Case, 

12 

S.    V. 

324 

Kane  r.  Hihornia  Ins.  Co. 

113 

King,  C.  V. 

274,  292,  319 

Karnes,  Williams  v. 

155 

V.  Lake, 

154 

Karr  /■.  S. 

64 

V.  McKissick, 

155 

Raster,  S.  r. 

164 

Rex  V. 

78 

Kattlemann,  S.  v. 

110 

Root  V. 

156 

Kavanaugli,  S.  v. 

45,  52 

V.  S. 

326 

Kay,  Reg.  v. 
Keady  v.  P. 

263 

S.  t'. 

27,  258,  296 

220 

Kingsbury,  C.  v. 

175 

Kearny,  P.  v. 

187 

Kinu'sliury's  Case, 

88 

Kee  V.  S. 

24,  221 

Ivinkliead,  8.  v. 

69 

Keefe  i'.  S. 

204 

Kinnoull,  Ferguson  v. 

37 

Keen,  U  S.  v. 

26 

Kinney  ;•.  C. 

184 

Keen  an  v.  C. 

52 

S.  V. 

118 

S.  V. 

134. 

15.5,  158 

Kinsey,  Rex  v. 

91 

Keenc,  S.  v. 

132, 

13.-.,  140 

Kipliart  v.  S. 

149 

Keeper,  C.  v. 

150,  152 

Ki{)per  V.  S. 

172 

Keerl,  S.  v. 

48 

Kirhv  V.  Foster, 

298 

Keir  v.  Leeman, 

22 

P.  V. 

27 

282 

Keith  V.  Buck, 

21 

Kirk  V.  Garrett 

Keller  v.  S. 

3 

Kirkpatriek,  S.  v. 

132 

S.  V. 

55 

Kirkwood,  Rex  v. 

72 

KcUey  r.  P. 

241 

Kirland  r.  S. 

202 

Simmons  v. 

120 

Kleebaur  v.  Fuse  Co. 

10 

TABLE   OF   CASES. 
[References  are  to  pages.  ] 


XXXI 


Klein  v.  S. 

206' 

Langley,  Reg.  v. 

159 

Kliiuock,  U.  S.  V. 

331 

Langinead,  Reg.  v. 

321 

Klug  V.  .McPhee, 

133 

Lanier  i\  S. 

248 

Klum  V.  S. 

147 

Lanigan,  C.  v. 

41 

Kiiapp,  C.  V. 

73,  115 

Lannan,  C.  v. 

278 

r.  v. 

76 

Lapier,  Rex  v. 

235,  260 

Kiieeland,  C.  v.             153, 

180,  181,317 

Lamer,  Reg.  v. 

310 

Knewland,  Hex  v. 

236 

Larney  v.  Cleveland, 

96 

Kniglit,  C.  V. 

135; 

Lash,  S.  V. 

182 

Ilex  V. 

5,  42,  281 

Lathrop  v.  Amherst  Bank,                129 

S.  ;;. 

45 

Latimer,  Reg.  v. 

89 

Kniglit's  Case, 

10,32 

Lavalley,  S.  v. 

134 

Knock,  Reg.  v. 

64,  65 

Lavender,  Rex  v. 

273 

Knowles,  U.  S.  v. 

34 

Law  I'.  C. 

40 

Knowlton,  C.  f. 

1,  2,  18G,  188 

Lawless,  C.  v. 

101,  255,  266 

Kno.x  i:  New  York  City, 

161 

V.  S. 

•325 

S.  i: 

135 

Lawrence  v.  C. 

58 

Knoxville,  Mayor  of,  S.  v 

63 

Reg.  V. 

308 

Koplan,  S.  v. 

264 

■    V.  S. 

271 

Kortz,  Van  Steenbergh  v. 

134 

S.  V. 

47,  49,  168,  3i)7 

Kossakowski  i'.  S. 

296 

Lawson,  Lay  v. 

159 

Kroeger,  S.  v. 

325 

V.  S. 

193 

Krummer,  P.  ;•. 

324 

Lawton  v.  Sun  Mut. 

Ins.  Co.            332 

Kunckle  v.  Kunckle, 

142 

Lay  r.  Lawson, 

159 

V.  S. 

167 

Layton  v.  Harris, 

156 

Kubrecht  v.  S. 

156 

Lea,  S.  V. 

135 

Kwok-a-Siug,  Atty.-Gen. 

V.              330 

Leach,  C.  v. 
S.  V. 

2 
144 

Leaclie  v.  S. 

45 

L. 

Leah  an  i\  Cochran, 

161,  164 

Learnard,  S.  v. 

41,71 

Lacefield  v.  S. 

39 

Learned,  S.  v. 

102 

Lacey,  Lee  v. 

61 

Leary,  S.  v. 

151,  152 

Ladd.  C.  V. 

326 

Leathers,  U.  S.  v. 

59 

Norton  v. 

257 

Leavitt,  S.  v. 

316 

Lafferty,  C.  v. 

182 

Ledford,  S.  v. 

281,  284 

La  Forrest,  S.  v. 

4 

Lee  V.  Lacey, 

61 

Lake,  King  v. 

154 

Reg.  V. 

300 

S.  I'. 

82 

Rex  V. 

209 

Lamb  v.  P. 

75 

V.  S. 

32,49,68,  114 

P.    V. 

228 

Leeds,  S.  v. 

21 

V.  S. 

7.3,  191 

Leeman,  Keir  v. 

22 

Lambert  v.  P. 

132,  172 

v.S. 

56 

Kex  1-. 

156 

Leaser's  Case, 

313 

Lambertson  v.  P. 

194 

Lefler  v.  S. 

308 

Lamphere,  Re, 

2 

Lehre,  S.  v. 

156,  157 

Lampliier  v.  S. 

280 

Leigh's  Case, 

275 

Lancaster,  C.  v. 

306 

Leightou  v.  P. 

214 

lieg.  V. 

124 

Le  Mott's  Case, 

245 

Lancy  v.  Havender, 

130 

Leonard,  C.  v. 

117,  321 

Landers  v.  S. 

239 

Jones  V. 

88 

Landgraf,  S.  v. 

24 

P.  V. 

152 

Landreth,  S.  v. 

317 

Leslie,  Reg.  v. 

62 

Lane,  C.  v. 

183,  184 

v.a. 

78 

v.F. 

269 

Lester,  C.  v. 

289 

V.  S. 

69,  183 

Leuhrsman,  S.  v 

204 

Lange,  Ex  parte. 

106,  108 

Levar  v.  S. 

55,  125 

Lannford,  Reg.  v. 

318 

Levelle,  S.  v. 

38 

S.v. 

257 

'  Levet's  Case, 

53 

XXXll 


TABLE  OF  CASES. 
[References  are  to  pages.] 


Levi  V.  Levi,  173,  174 

Levy,  S.  v.  209 

Lewer  v.  C.  277,  312 

Lewis  V.  C.  31H 

P.  V.  23,  49 

Re,  20 

Keg.  V.  173,  199 

Eex  V.  134 

r.  S.  33,  165,  169 

S.  V.  49,  73,  188,  202 

V.  Walter,  159 

Lib  hey,  C.  v.  295 

Lightsey,  S.  v.  206 

Liiice,  Keg.  v.  309 

Lincoln,  C.  ;.'.  309 

Lindenthal,  S.  v.  263 

Lindsay  v.  P.  118 

Lindsey  v.  S.  82 

S.  V.  38 

Linney,  S.  v.  66 

Linton,  Blaikie  v.  19 

Lipliardt,  P.  y.  18 

Liscomb,  P.  v.  105 

Lister,  Keg.  v.  10 

Litchfield,  S.  v.  117 

Little,  i?e,  89 

Keg.  V.  267 

v.  S.  143 

Littlefield,  S.  v.  112 

Livennore  v.  White,  254 

Livingston  ?•.  C.  222 

Llewellyn,  S.  v.  206 

Lloyd,  Weaver  v.  155 

Loader,  Marsh  v,  41 

Lock,  Keg.  V.  200,  201 

Lockerby,  S.  v.  187 

Loeffner  v.  S.  49 

Logan,  U.  S.  v.  12,  85 

Loggcn,  Re.x  i'.  126 

Lombard,  P.  v.  228 

Long,  P.  V.  201 

V.  Rogers,  280 

V.  S.  235,  236,  237,  261 

Longbottom,  Keg.  v.  23 

Longley  v.  C.  50 

Longstrcath,  Rex  v.  267 

Lonon,  S.  i-.  199 

Looinis  V.  Edgerton,  315 

V.  P.  277 

P.  V.  205 

Loose  V.  S.  233 

Lopez,  Reg.  v.  81 

i;.  S.  118 

Lett  V.  Burrel,  140 

V.  S.  167 

Loud,  C.  V.  106 

Louisville,  City  of,  i\  Roupe,  160 

Lowncy,  Whiteside  v.  280 

Love  V.  P.  18 


Lovett,  C.  V. 

Reg.  V. 
Loving  V.  S. 
Low,  Reg.  V. 
Lowe,  Reg.  v. 

v.S. 
Lowenthal  v.  S. 
Lowney,  AVhiteside  v. 
Lowre}',  S.  v. 
Loyd  V.  S. 
Lucas,  C.  V. 

v.S. 

S.v. 
Luekey  v.  S. 
Luckis,  C.  V. 
Luke  V.  S. 
Lundy  v.  S. 
Lyle  V.  Clason, 
Lyman  v.  P. 
Lynius,  S.  v. 
Lynch  v.  C. 

Reg.  V. 
Lyne,  Emmet  v. 
Lynn,  Rex  v. 

v.F. 
Lyon,  S.  v. 
Lyons  v.  S. 

M. 

Maas  V.  Terr. 
.Mabbett,  Reg.  v. 
McAdanis  r.  S. 
MoAdden,  S.  v. 
McAfee,  C.  v. 
McAllister  v.  S. 
McArtliur  v.  S. 
McAtee,  C.  v. 
McAvoy  V.  Medina, 
McCall,  S.  V. 
McCance,  S.  v. 
McCann,  P.  v. 

S.  V. 
McCants,  S.  i-. 
McCarney  c.  P. 
McCarty,  Kesp.  v. 

V.  S. 

S.v. 
McCarty's  Case, 
McCanghey  v.  S. 
McClcan  v.  S. 
McClelland,  Elliot  v. 
McClory  r.  Wright, 
MeCone,  S.  v. 
McConnell  v.  S. 
McCord  V.  P. 

P.   V. 

McCorniick  ?\  S. 
McCuUoch,  C.  V. 


153 
10 

297 

279 

32,  227 

45,  46,  291 

292 

280 

108 

78,  319 

184 

283 

75 

144 

260 

242 

261 

157 

181 

257 

49,  217 

39 

203 

12 

61 

21,  241 

186,  189 


48 
227 

17 

152 

63,  198,  216 

24 
158 

76 
271 
248 

72 

48 
271 
219 

78 

70 

75,  269 

268 

121,  123 

102 

163 

129 

117 

133 

141 

24,  306 

17 
236 
128 


TABLE  OF  CASES. 

[References  are  to  pages.] 


XXXlll 


McCuUough  V.  C. 
MuCune,  S.  t\ 
McCutuheon  v.  r. 
McDaniel,  Fisher  v. 
Eex  V. 
I'.  S. 
S.  f. 
McDaniels,  P.  v. 
McDeniiott,  S.  v. 
McDonaUl,  C  v. 
P.  V. 
Reg.  V. 
Rex  V. 
S.  i;. 
McDonell,  P.  c 
McDonnell  v.  Henderson, 
Mc Duffy,  C.  V. 
Mace,  S.  *'■ 
McElroy,  P.  v. 
McFarlin,  P.  v. 
McGahey,  C.  v. 
McGarry,  P.  v. 
McGary  v.  P. 
McGavaran,  Reg.  v. 
Mc(jee  V.  S. 
McGehee  v.  S. 
McGlue,  U.  S.  I'. 
McGonigal,  S.  v. 
McGoon  V.  Aukey, 
McGowan,  P.  v. 
McGrath,  C.  v. 
Reg.  V. 
V.  S. 
McGrowther,  Rex  i'. 
McGruder,  S.  v. 
McGuire  i'.  S. 
Wood  V. 
McIIale,  C.  v. 
Macino,  P.  i'. 
Mcintosh  r.  Matherly, 
Mclntyre  v.  P. 
McKay,  P.  v. 

V.  S. 
McKean,  S.  v. 
McKearney,  Rex  v. 
McKie,  C.  V. 
Mackin  v.  P. 
McKinney,  P.  v. 

V.  S. 
McKissick,  King  v. 
McLaughlin,  C.  v. 
McLean,  Bayard  v. 

S.  r. 
McLeod,  P.  V. 
Macloon,  C  v. 
IklcMahon,  Benson  v. 

f.  S. 
]\IcMurray,  P.  v. 
McNaghten's  Case, 


McNair  v.  S, 
McNeal  c  Woods, 
\  McNease,  Fonville  v. 
MclS'eil  I'.  S. 
Macomber,  Pay  son  v. 

S.  V. 

Maconnehey  v.  S. 
'  Mcl'liane,  Heg.  v. 

McPhee,  Klug  v. 
'  McPherson  v.  Cox, 

S.    !-■. 

MacRae,  S.  v. 
McQuaid,  P.  v. 
McUeynolds  v.  S. 
McShane,  C.  v. 
Maddocke,  Rex  v. 
Maddox  v.  S. 
Maddy,  Rex  v. 
Madge,  Reg.  v. 
Madison,  S.  v. 
Madox,  Hex  v. 
Ma  gee,  S.  v. 
Magnell,  S.  v. 
Maher  v.  P. 
1  Mahon  r.  Justice, 
Mahoney  v.  P. 

v.  S. 
Maid,  U.  S.  V. 
Main.S.  v.        ^   „   „ 
Mairs  v.  B.  &  0.  R.  R- 

S.  V. 
Makely.  C  v. 

I  Malek  Adhel,  Ihe,  U.  S.  v. 
Malin,  Resp.  v. 
I  Mallett.  S.  V. 
Mallison,  Rex  v. 
Mallory,  Bell  v. 
I  P.  V. 

I  Malloy,  S.  V. 
j  M  alone  v.  S. 
j  Maloney-,  C.  v. 
1  P.  V. 

1  Maloy,  S.  v. 
Manchester,  C.  v. 

V.  Mass. 
Mangum  v.  S. 
)  1  Mankins  v.  S. 
i  \  iManley,  Reg.  v. 
Manning,  Reg.  v. 
V.  Sprague, 
I'.  S. 
Mansfield,  Reg.  v. 
J^Ianton,  Terr.  v. 
Manuel,  S.  v. 
ISIarch,  Reg.  v. 
Rex  V. 
V.  S. 
I  Marcus  v.  S. 
I  Maria  r.  S. 


232 
241 
157 
108 
190 
55 
52 
72 
133 
131 
247,  329 
262 
183 
183,  184 
107 
313 
327 
217 
320 
160 
276,  290 
300 
191 
218,  219 
89 
235,  236 
283 
133 
281 

8  . 
126 
240 
331 
168 
8 
274 
149 
164 
37 
50 
99 
257 
67 
80 
4 
275 
157 
71 
78,  283 
131 
133 
100 
32 
315 
206 
240 
265 
273 
216 


XXXIV 


Marianna,  Flora,  The, 
Marigold,  C  S.  i: 
Markey  v.  S. 
Marks,  Stansbury  v. 
Markuss,  Keg.  v. 
Marley  v.  S. 
Marmont  c.  S. 
Marinouget,  S.  v. 
Marriott,  Rex  v. 
Marriott,  Keg.  v. 
Marrow,  Reg.  v. 
Marsh  v.  Loader, 

S.  V. 
Marshall,  C.  v. 

Rex  V. 

r.  S. 
Marshall's  Case, 
ilartin  c.  Clark, 

1-.  C. 

Plead  V. 

P.  y. 

Keg.  V. 

V.  S. 

S.v. 

V.  Terr. 
Martinez  v.  S. 
Marvin,  S.  c. 
Mary  v.  S. 
Masli,  C.  V. 
Mason  v.  P. 

Rex  V. 

V.  S. 
Mason,  Town  of,  v.  0.  R. 
Massage,  S.  r. 
Master  r.  Miller, 
Masters,  Reg.  v. 
blather,  P.  v. 
Matherl}',  Mcintosh  v. 
Matthews,  Reg.  v. 

V.  S. 

S.  y. 

V.  Terry, 
Maury  v.  S. 
Mawbey,  Rex  v. 
Mawgridge,  Reg.  v. 
Maxwell,  C.r. 

S.  r. 
May,  Reg.  v. 
May  berry,  S.  v. 
Maybin  v.  Raymond, 
Ma^'ers,  Reg.  v. 
Maynard  v.  P. 
Mayor,  etc.,  Patchin  v. 

V.  Pinch, 

Reg. ;;. 
Mays  V.  S. 
^lazagora,  Kex  v. 
Mead,  C.  v. 

V.  Young, 


TABLE  OF  CASES. 

[References  are  to  pages.] 


81,  331 

Medina,  McAvoy  v. 

271 

328,  329 

Medlor,  Rex  v. 

12 

133 

Medway  v.  Needham, 

184 

140 

Meek,  Reg.  v. 

137 

35 

Wright  V. 

129 

168 

Meeres,  Rex  v. 

275 

26 

Meldruni,  S.  v. 

262 

82 

Mellish,  Rex  v. 

294 

185 

Melsing,  Tornanses  v. 

142 

33 

Mercer,  Keg.  v. 

125 

152 

Mercer  County  v.  Harrodsburg,        164 

41 

Mercersmith  v.  S. 

76 

56,  152 

Mereditii,  Reg.  v. 

15,  199 

3 

Merrill,  S.  v. 

67,  291 

103,  324 

Merrit,  S.  v. 

161 

51,  58,  59 

Merry  v.  Green, 

270 

51 

Mesca,  Resp.  v. 

2 

129,  130 

Meyer,  P.  v. 

260 

66 

Meyers,  Ex  parte. 

3 

62 

Mezzara's  Case, 

155 

24,  134 

Michael,  Keg.  v. 

71 

33,  310 

Micheaux  v.  S. 

284 

85,  329 

Middleham,  S.  v. 

68 

68,  297,  229 

Middleton,  Reg.  v.      264, 

266,  272,  312 

265 

r.  S. 

14 

289 

Miers  v.  S. 

66 

182,  193 

Mifflin  r.  C. 

174 

243 

Milburne's  Case, 

269 

58,  60,  185 

Milgate,  P.  v. 

69 

250 

Millard,  S.  v. 

192 

234 

Miller  v.  C. 

265 

282 

C.v. 

145,  165 

R.  C.         11 

Master  v. 

128 

216 

P.  f. 

175,  313 

128 

V.  S. 

42,  74,  220 

273,  274 

S.  V.                       66, 

136,  193,  233 

171,  175,  176 

Millinian,  C.  v. 

161 

157 

Mills  V.  C. 

187,  191 

270 

Robinson  v. 

161 

116 

Reg.  V. 

307,  309 

143 

S.  r. 

151,  308 

198 

Milton  V.  S. 

6 

68 

Milwaukee,  Fink  i;. 

96 

172 

Miner  v.  P. 

181,  182 

216 

Ming  V.  Truett, 

125 

101 

Mingo,  U.  S.  V.            215 

218,  227,  228 

135 

Mink,  C.  ;■. 

29,  38,  170 

294 

M inter  v.  S. 

244 

171, 175 

Mitchell  V.  C. 

191 

130,  131 

C.v. 

126 

201,  233 

v.^. 

4 

137 

S.  y. 

37,  242 

142 

V.  Terr. 

283 

142 

V.  Tibbetts, 

84 

58 

U.  S.  V. 

121,  122 

217 

Mi  tell  urn  r.  S. 

262 

327 

Moali,  Reg.  v. 

322 

40,41 

Moan,  P.  V. 

23 

324 

Mobley  r.  S. 

273 

TABLE   OF   CASES. 
[References  are  to  pages.] 


XXXV 


■Nfohr,  In  re. 

88 

Mucklow,  Rex  v. 

270 

272 

:Molette  V.  S. 

210 

Muir  V.  S. 

132 

Molicr.  S.  I'. 

135 

137 

.Mulford  V.  P. 

295 

.M.)lt..n  V.  S. 

261 

Mulliolland.  C.  v. 

328 

Monroe,  S.  v. 

202, 

223 

Mullaly  r.  P. 

257 

Monson  r.  Tusseaud's  Ltd. 

156 

Mullen,  C.  v. 

105 

Jklontgomery  r.  C. 

67 

S.  1-. 

51, 

287 

V  Judge, 

141 

Mullens  v.  S. 

27 

V.  S. 

135 

Mulligan  v.  S. 

289 

iloodv  V.  P. 

190 

Mulliken,  S.  v. 

12 

P.  V. 

316 

IMulrey,  C.  v. 

307 

311 

V.  S. 

198 

Munden  v.  S. 

228 

Moor,  Rex  v. 

185 

Munkers  r.  S. 

186 

Moore   C.  v. 

300 

Munsey,  C.  v. 

42 

V.  Illinois,                       85 

109 

829 

Munslow,  Reg.  v. 

156 

P.  v. 

202 

Murphreesboro,  S.  v. 

11 

Fe, 

140 

Murpliy,  C.  v. 

39 

101 

Peg.  V. 

269 

Cote  V. 

173 

Re.\  I'.                           16.3 

265 

266 

1-.  P. 

279 

S.  V.    6,  12,  162,  193,  219, 

230, 

247, 

P.  r. 

286 

254, 

311 

Reg.  V. 

62, 

304 

U.  S.  V. 

39 

V.  S. 

200 

Moran  r.  P. 

232 

S.  V.  8,  174,  175,  191, 

216, 

256, 

266 

P.  r. 

167 

U.  S.  r. 

265 

S.  V. 

118 

Murray,  P.  i-. 

165, 

166, 

167 

Mordecai,  S.  v. 

245 

Rex.  V. 

274 

292 

Morehouse,  P.  v. 

206 

S.  V.                          4 

5,49, 

143, 

175 

Morelind,  C.  v. 

320 

Musfelt  V.  S. 

193 

Morfit,  Rex  v. 

286 

Musgrave,  Nelson  v. 

155 

Morford  v.  Terr. 

133 

Musgrove  r.  S. 

311 

]\Iorgan,  S.  r.                  67,  197 

204 

255 

Music-k,  S.  v. 

212 

Morlev's  Case, 

216 

Mutchler,  Re, 

283 

IMorphin,  S.  v. 

291 

Mycall,  C.  v. 

326 

Morpliv,  P.  V. 

303 

Mvers,  Evanston  v. 

19 

Morrill,  C.  v. 

24 

306 

F.v. 

131 

S.  r. 

140 

v.S. 

298 

Morris,  Beaucliamp  v. 

152 

Stephens  v. 

203 

C.c. 

98, 

157 

U.  S.  1-. 

204 

Keg.  r. 

112 

Rex  v. 

41,78 

25. 

V.  S. 

11 

]\]orris  Canal  Co.,  S.  v. 

160 

Xall  V.  S. 

144 

.Morris  Run  Coal  Co.  v.  Barclay 

Xapier,  Dobree  i'. 

80 

Coal  Co. 

173 

175 

Napper,  Rex  v. 

100 

Morrison's  Case, 

205 

Nash  r.  S. 

248 

jVlorrow,  U.  S.  v. 

828 

S.  V. 

53 

Morse,  C.  v. 

100 

National  Ins.  Co.,  Stone 

V. 

332 

V.  S. 

6 

Nations,  Wilson  v. 

136 

Mortimer,  P.  v. 

8 

Naylor,  Reg.  v. 

305 

Mortin  v.  Shoppee, 

203 

Nayson,  "Winslow  v. 

142 

Morton,  P.  v. 

17 

Neagle,  In  re, 

85 

Mosely  v.  S. 

317 

Neal,  C.  I'. 

42 

]\Ioses  V.  Dubois, 

231 

Neale,  Reg.  v. 

127 

Mo.<her,  P.  v. 

183 

Needliani,  Medway  v. 

184 

]Mosler.  C.  v. 

4$ 

219 

Neff,  S.  1-. 

63 

.Mott,  Rex  V. 

24 

Neeley,  S.  v. 

204 

227 

:\Iow  V.  P. 

73 

Negus,  Reg.  i: 

2'.t3 

Mowrev,  S.  v. 

45 

Neims  V.  S. 

lt<4 

Moye  i'.  S. 

290 

Nelson  v.  JIusgrave, 

155 

XXXVl 


TABLE   OF   CASES. 
[References  are  to  pages. 1 


Nelson  v.  S. 

217 

O'Brien,  S.  v.     32,  68, 141,222,227,  244 

Neville,  S.  v. 

218 

O'Brvan  r.  S. 

134 

Newberry,  1'.  v. 

74,77 

O'Connell,  C.  v. 

105 

Newby,  S.  v. 

317 

Oddy,  Reg   v. 

321 

Newell,  C.  v. 

2,  5,  9,  209 

251 

Odell,  C.  r. 

155 

S.v. 

310 

O'Dogliertv,  Reg.  v. 

141,  143 

Newkirk,  Buster  v. 

257 

0'Donneli,'P.  c. 

172 

V.  Cone, 

129 

Reg.  V. 

282,  283 

S.v. 

318 

Rex  V. 

91 

Newman,  Reg.  v. 

157 

Ogilby,  Johnson  v. 

22 

Newton,  S.  i\ 

59 

Ogietree  v.  S. 

36 

New  York,  Cohen  v. 

161 

O'Halloran  v.  S. 

16,17 

Knox  V. 

161 

O'Hara,  C.  r. 

287 

New  York  Gas  Co.,  P. 

V. 

162 

O'Hare,  S.  v. 

187 

Niblo  V.  S. 

38 

Ohio,  Fox  V. 

85,  329 

Nichol,  Keg.  v. 

200 

O'Kean,  S.  v. 

298 

Nicholls,  Keg.  v. 

83,34 

Okey,  Kex  v. 

126 

V.  S. 

245 

Oliver  v.  C.     ' 

187 

Nichols  V.  C. 

291 

S.  V. 

63,  198 

C.    V. 

115 

Olsen,  Terr.  v. 

317 

V.  P. 

275, 

276 

O'iMalley,  C.  v. 

277,  278 

Nicholson,  Rex  v. 

266 

O'Neil  V.  S. 

114 

Nickerson,  C.  v. 

188,  190 

231 

O'Neill  V.  S. 

147 

U.  S.  V. 

110 

Onslow,  Reg.  v. 

140 

Nightengale  i'.  S. 

286 

('pie.  Rex  c 

131 

Noakes,  Keg.  v. 

34 

Orcutt,  P.  V. 

37 

Noble,  S.  V. 

97 

Ordway,  C.  v. 

202 

Noles  V.  S. 

220 

0.  R.  K.  Co.,  Mason  v. 

11 

Nolze,  Wilcox  v. 

88 

Ortner  v.  P. 

132 

Noonan,  Wilson  v. 

155 

Osborn,  Rex  v.               13, 

299, 

313,  314 

Norden,  Rex  v. 

17 

237 

Oswald's  Case, 

140 

Norman  v.  U.  S. 

222 

Otciza,  In  re, 

86 

Norris,  S.  v. 

136 

Otis,  S.  V. 

20 

Nortiicot  V.  S. 

817 

Outlaw,  S.  r. 

249,  250 

Northrup,  S.  v. 

117 

Overton,  Reg.  i*. 

136 

Norton,  C.  v. 

307 

V.  S. 

281 

V.  Ladd, 

257 

Owen,  Kex  v. 

41,  73,  289 

V.  P. 

78 

v.S. 

287 

l\v. 

127 

Owens,  P.  V. 

45 

Rex  V. 

98 

V.  U.  S. 

66 

Sulston  I'. 

124 

Oxx  V.  S. 

308 

Norval,  Reg.  v. 

274 

Note, 

273 

P. 

Nott,  C.  V. 

289 

Nowell,  Gowen  v. 

128 

Noyes  v.  S. 

275 

Packard,  C.  v. 

162 

S.  V. 

174 

175 

Packers'  Ass'n,  U.  S.  v. 

44 

Nutt,  S.  V. 

111 

Pallia,  Ex  parte, 
Palmer  v.  P. 

143 

280 

0. 

P.  r. 

V.  S. 

114 

318 

Oaks,  C.  V. 

11,12 

S.  V. 

49,  287 

Kerr.   V. 

SOI 

U.  S.  V. 

331 

O'Bannon,  S.  i'. 

]8() 

Pankey  v.  P. 

132 

Ohcr.shaw,  S.  v. 

35 

Paradice,  Kex  r. 

273 

O'Brien,  C.  i-. 

24 

,117 

Par,  nt,  P.  v. 

134 

Ferens  c. 

254 

I'argeter,  Kex  v. 

32 

P.   V. 

20 

Parish.  Reg.  r. 

327 

Reg.  V. 

248 

Parker,  C.  v.                  15, 

101 

199,  300 

Ti 

VBLE   01 

^  CASES. 

XXXVll 

[References  are  to  pages.] 

Parker,  Reg.  v. 

243 

Perkin's  Case, 

82 

Ilex  V. 

S04 

Perry,  C.  v. 

163,  164 

V.  S. 

65 

Reg.  V. 

255,  273 

S.v. 

4 

S.v. 

147 

Tumalty  i\ 

280 

Fetch,  Reg.  i'. 

259 

Parks,  Ilex  r. 

266 

Peter,  P.  v. 

21 

Parnell,  Hex  v. 

134 

Peters,  C.  v. 

108 

Parris  v.  P. 

316 

Reg.  V. 

283 

Parshall,  P.  v. 

189,  190 

S.v. 

133,  137 

Parsons  v.  S. 

46,  47, 

117,  221 

Petit,  S.  V. 

251 

S.  V. 

296 

Pettit  V.  Walslie, 

86 

Pascagoula  Boom  Co. 

V.  Dickson,     161 

Peyton,  Bergeron  v. 

272 

Pasnaii,  S.  f. 

51 

Phenix  Ins.  Co.,  Fay 

erweather  v.    322 

V-At  v.  S. 

321 

Plietlieon,  Reg.  v. 

284 

Patapsco  Ins.  Co. 

V.  Coulter, 

332 

Phillev,  S.  V. 

201 

Patcli,  Hex  v. 

265 

Philips,  P.  V. 

198 

Patcliin  V.  MayoT 

of  Brooklyn 

142 

Reg.  t\ 

40 

Patrick  v.  Smoke, 

136 

Phillips,  C.  V. 

74 

Patten  v.  P. 

67,  230 

V.  P. 

85,  108 

Patterson,  S..i". 

68, 

69,  207, 

208,  220, 

Rex  V. 

169,  283 

229, 

289,  298 

V.  S. 

25 

Patton,  S.  V. 

4,36 

Wood  V. 

150 

Paul,  S.  V. 

803 

Phillpotts,  Reg.  v. 

137 

U.  S.  V. 

4 

Philpot,  S.  V. 

140 

Pauli  V.  C. 

327 

Pickering,  C.  v. 

132 

Payne  v.  P. 

255,  259 

Pickett,  S.  V. 

200 

1-.  S. 

•232 

Pierce,  Carver  v. 

256 

Payson  v.  Macomber, 

190 

C.  ;;. 

35 

S.  r. 

163 

Reg.  V. 

271 

Peacock,  P.  v. 

324 

S.  V. 

317,  318,  324 

Pearce,  Rex  v. 

35,  267 

Pierson,  P.  v. 

35 

S.  V. 

181 

Pike  V.  Hanson, 

203 

V.  Terr. 

74 

S.v. 

30,  45,  47 

Pearne,  P.  v. 

32 

Pinkard  v.  S. 

5 

Pearson  v.  C. 

323 

Piper,  C.  V. 

4,116 

S.  V. 

150,  152 

Pirates,  U.  S.  v. 

109,  331 

Pearson's  Case, 

53,  217 

Pisar  V.  S. 

26 

Pease,  C.  v. 

22,  126 

Pistorius  v.  C. 

228 

V.  S. 

265 

Pitman  v.  Clark, 

141 

Peaslee,  C.  v. 

165 

Rex  V. 

254,  261 

Peat's  Case, 

237 

Pitt,  Combe  v. 

124 

Peck  V.  S. 

262 

Pitts,  Reg.  i-. 

222 

PecUey,  Rex  v. 

29 

,  136,  240 

r.  S. 

313 

Peelle  v.  S. 

151 

S.  V. 

111 

Peltier's  Case, 

154 

Pittsburgh  Ry.  Co.  i 

.  Crothersville,  164 

Pelts  V.  S. 

319 

Kelly  V. 

163 

Pemhilton,  Reg. 

V. 

38,  318 

Pitwood,  Hex  v. 

33 

Pence  v.  S. 

287 

Plake  V.  S. 

46,48 

Pender,  Williamson  v. 

142 

Plant,  Rex  v. 

109 

l^ennegar  u.  S. 

184 

Pleasant  v.  S. 

233 

Pennington,  S.  v. 

153 

Plummer,  Rex  v. 

175,213 

Pennsylvania  Canal  Co.,  C.  i' 

3 

S.  V. 

132 

Penny,  S.  i\ 

5 

Pocock,  Reg.  V 

221 

Penton  v.  S. 

193 

Polk  I'.  S. 

48 

Percival  v.  Yous 

ing, 

162 

Pollard,  C.  V. 

131,  137 

Perine  v.  Dunn, 

129 

Reg  ?•. 

42 

Perini,  P.  i'. 

273 

PoUet  r.  S. 

318 

Perkins,  C.  v. 

98 

PoUman,  Rex  v. 

124 

S.v. 

55 

Pomeroy,  C.  v. 

46,48 

XXXVlll 


Pond  t:  P. 
Poole,  Keg.  v. 
Porter,  P.  v. 

Reg.  v.. 

V.  S. 

S.v. 
Potter  V.  S. 
Potts,  S.  V. 
Poulton,  Pex  v. 
Powder  Co.  f.  Tearney, 
Powell  V.  C. 

C.  V. 

V.  Flanary, 

Keg.  I'. 

Kesp.  V. 

V.  S. 

S.v. 
Power,  S.  V. 
Powers  )'.  Dubois, 
Poynier,  S.  v. 
Poyser,  Keg.  v. 
Prater,  S.  v. 
Pratley,  Rex  v. 
Pratt  V.  Hutchinson, 

V.  Price, 

Reg.  V. 

Rex  V. 
Presby,  C.  v. 
Presiiell,  S   v. 
Pressley  v.  S. 
Preston  v.  P. 

Reg.  V. 

f.  S. 
Price  V.  P. 

Pratt  V. 

Keg.  V. 

V.  S. 

V.  U.  S. 
Pridgen,  S.  v. 
Priester  v.  Angley, 
Prince,  Reg.  v.    29,  58 

Prindle  v.  S. 
Pritchett  v.  S. 
]^rivett,  Reg.  v. 
I'robasco,  S.  r. 
I'roprietors,  &c.,  C.  v. 
Protector  c.  Buckner, 
Prowes,  Rex  v. 
Prudliomine,  S.  v. 
Pruner  v.  C. 
Pryor,  S.  v. 
I'ugii,  S.  V. 
Pulle,  S.  V. 
Piillen,  S.  V. 
Purdy,  S.  v. 
Purse,  S.  I'. 
Putnam,  C.  v. 
r.  Putnam, 


TABLE   OF   CASES. 
[References  are  to  pages.] 


207,  229,  230 
283 
180 
213  j 
318  I 
69,215 
31 
49,  249 
211 
162  I 
325  I 
14' 
22 
255 
14,  31H  I 
273  1 
11,  163,  180,  244  j 
35  ! 
155  1 
78 
277 
67 
276 
160 
134 
275 
265,  268 
54 
26 
244 
109 
270 
216,  217 
64 
134 
12 
218 
18 
152 
230 
,60,100,264,260, 
312 
194 
271 
286 
59 
43 
219 
83,  320 
118 
193 
302 
232 
2 
281 
124 
163 
184 
183 


Pyland  v.  S. 
Pywell,  Rex  v. 


Q. 


Quail,  Reg.  v. 
Quattlebaum  v.  S. 
Quin,  P.  V. 
Quiiin,  I'.  P. 

R. 

Radford,  Reg.  v. 
Kafferty  v.  P. 
Kagland  v.  S. 
Kalier,  P.  v. 
Kahl,  S.  V. 
Halli,  Collins  v. 
Ramsey,  C.  v. 
Randall,  C.  v. 

Reg.  V. 
I  Randell,  Reg.  v. 
!  Riiiid  Lumber  Co.  v. 
Kamloiph,  C.  r. 

P.  V. 
Rankin,  S.  v. 
Ranney  v.  P. 
Ransom  v.  S. 
Rasclie,  P.  v. 
Ratlibun,  P.  v. 
Ratz,  P.  v. 
Rauck  V.  S. 
Kausclier,  U.  S.  v. 
Raven,  Rex  v. 
Ray,  C.  V. 

S.v. 
Raymond,  May  bin  v. 

S.v. 
Read  v.  C. 

Reg.  v. 
Reading  v.  C. 

Rex  v. 
Reagan  v.  U.  S. 
Reanes's  Case, 
Rector,  P.  v. 
Reddick  v.  C. 
Redfield  r.  S. 
Reed  v.  P. 

Reg.  V. 

V.  S. 

S.v. 
Reekspenr,  Rex  v. 
Reese  v.  Wyman, 
Heeve,  Reg.  v. 
Reeves,  Reg.  v. 

V.  S. 

S.  r. 
Regan,  Reg.  v. 
Regent  v.  P. 


271 
171 


169 

46 

200 

246,  287 


328 

49,  219,  220 

248 

39 

193 

312 

96 

27,  63,  198 

11 

304 

Burlington,   162 

15,  169 

41,  1G8,  232 

162 

300 

270 

265 

82 

29 

204 

86,  87 

274,  275 

76,  321,  324 

152 

130,  131 

137 

215,  216 

200,  297 

11 

27 

8 

236,  237 

68 

29 

231 

103 

11,  55,  163,  274 

218,  270,  297 

117 

194 

301 

115 

211,263,  275 

296 

187 

37,  242,  243 

169 


TABLE  OF  CASES. 


XXXIX 


[References  are  to  pages.] 


Eeggel,  Ex  parte, 

88 

Roberts's  Case, 

121,  123 

Reici,  S.  V. 

244 

]\obertson  v.  Bingley, 

143 

Keilly,  Hex  v. 

270 

Robeson,  Archbishop  v. 

1.54 

Koherts  v. 

88 

Robins,  Reg.  v. 

268 

Eeinitz,  P.  v. 

326 

Robinson,  Ex  parte, 

139,  142 

Kemington  v.  Congdon, 

158 

v.C. 

184 

Keneau  v.  S. 

62 

V.  Mills, 

101 

Renew  v.  S. 

133 

r.  P. 

161 

Renshaw,  Reg.  v. 

206 

P.   V. 

25,50 

Renton,  S.  v. 

149 

Reg.  V. 

311 

Revoir  v.  S. 

48 

v.a. 

17,  270,  276 

Rew,  He.x  v. 

22 

S.  I'.                        51, 

317,  323,  325 

Reynolds,  C.  v. 

90,  101, 

116 

Robson,  Rex  i'. 

26.5,  277 

V.  P. 

109 

Roby,  C.  V. 

104,  108,  112 

Reg.  V. 

279 

P.   V. 

72 

S.  y. 

296 

Rockwell  i".  Judge, 

2.57 

V.  U.  S. 

26 

P.  r. 

31,  221 

Rhoades,  S.  v. 

188 

Rodd,  Edgecombe  v. 

22 

Rlioads,  C.  V. 

61 

Roderick,  Rex  v. 

15 

Rice  v.  S. 

35,  226, 

319 

Rodriquez  v.  S. 

261 

U.  S.  V. 

61 

Rod  way,  Reg.  v. 

278 

Richards  o.  C. 

279 

Roebuck,  Reg.  v. 

303 

P.   V. 

175 

251 

Roeder  v.  S. 

273 

Rex  i>. 

283 

Rogers  v.  C. 

185 

S.  r. 

45 

C.  V. 

46,  174 

Ricliardson,  Rex  v. 

5,72 

319 

Long  V. 

201 

V.  Rowland, 

129 

130 

Reg.  r. 

319 

V.  S. 

182 

Rohrheimer  v.  Winters, 

22 

Richels  v.  S. 

205 

Rolland  V.  C. 

246,  247 

Ricliie,  S.  v. 

19 

Rollins,  8.  V. 

2,190 

Ricker  v.  Shaler, 

162 

Rooswell,  C.  V. 

233 

S.  c. 

75 

S.  V. 

200 

Rickert,  P.  v. 

151 

Root  V.  King, 

156 

Rickey,  S.  i-. 

171 

Roper,  S.  v. 

12 

Riddle,  U.  S.  V. 

5 

l?osebeck,  S.  r. 

189 

Ridgway,  C.  v. 

174 

Roscow  V.  Corson, 

332 

Riggs  V.  Denniston, 

155 

Rose,  Bruley  v. 

280 

Sherley  v. 

129 

Reg.  V. 

67 

S.  i: 

286 

V.  S. 

318 

Rigiiiaidon's  Case, 

32 

S.v. 

11, 192 

Riley,  Reg.  v. 

26fi 

285 

Rosen  v.  U.  S. 

18 

V.  S. 

29,  144 

157 

Rosenberg,  Reg.  v. 

281 

Rinaldi.  Reg.  v. 

325 

Rosinski,  Reg.  v. 

201 

Rinehart,  S.  v. 

182 

Ross  V.  Hunter, 

332 

Ring,  Reg.  v. 

167 

V.  Innis, 

298 

Riordan,  P.  v. 

69 

v.  S. 

112 

Ripley,  S.  v. 

174 

S.  u. 

198 

l^itson,  Reg.  v. 

325 

Rotbernial  v.  Hughes, 

22 

lioan,  S.  V. 

50 

Rotlistein,  P  v. 

301,  309 

Roane,  S   v. 

62 

Rothweu,  Ueg.  v. 

218 

Robb  V.  Connolly, 

88 

Roiipe,  Louisville  v. 

160 

Rolibins  V.  S. 

35 

Rowe,  Reg.  v. 

270 

Roberts  v.  P. 

36,  50,  51 

S.  V. 

245 

Reg.  V. 

166 

Rowell,  S.  V. 

137 

V.  Reilly, 

88 

Rowland,  Richardson  v. 

129,  130 

Resp.  V. 

2,182 

193 

Reg.  V. 

172 

Rex  V. 

125 

V.  S. 

217,  321 

V.  S. 

111 

,  220 

Rowley,  S.  r. 

171,  300 

S.  y. 

73 

Rowsey  v.  C. 

64 

xl 


TABLE  OF  CASES. 

[References  are  to  pages.] 


E.  R.  Co.  V.  P. 

43 

Saunders's  Case, 

30,  38,  75,  214 

P.  1-. 

44 

Savage,  Tuberville  v. 

204 

S.v. 

43 

Savannah  Pirates,  The, 

330 

Rubin,  C.  v. 

267 

Savin,  Ex  parte, 

139,  141 

Rudd,  Rex  v. 

21 

Savoye,  S.  v. 

173 

Rue,  S.  V. 

298 

Saward,  Reg.  v. 

275,  278 

Ruggles,  P.  V.                   1, 

11,  153,  180 

Sawyer,  Rex  v. 

19 

Ruhl,  S.  v.                      29, 

60,  189,  190 

I'.  S. 

218 

Ruloff  V.  P. 

76,  117 

Say  lor  v.  C. 

67 

Runnels,  C.  v- 

149 

Sayre,  C.  v. 

47 

Run  van  r.  S. 

227 

Say  ward,  Wonson  v. 

254 

Rusby,  Rex  i;. 

160 

Scaife,  Reg.  v. 

118 

Rush,  C.  V. 

161 

Scanlan,  S.  v. 

255 

Rushing,  S.  v. 

319 

Scates,  S.  v. 

23,  221 

Russell,  Rex  v. 

243 

Schenck  v.  Schenck, 

157 

Rex  V. 

161,  244 

Schonip  V. 

129 

S.  V. 

148 

Schingen,  S.  v. 

273 

Yates  I'. 

142 

Schlagel,  S.  v. 

79 

Russet,  Reg.  v. 

312 

Schlencher  v.  S. 

50 

Rust,  Ilex  V. 

248 

Schlit,  S.  V. 

298 

Ruthven,  S.  v. 

22 

Schlottman,  S.  v. 

160 

Ryan  C.  v. 

274 

Schmidt,  Reg.  v. 

320 

T.v. 

187 

Schomp  >\  Schenck, 

129 

Reg.  V. 

39 

Schulz,  S.  V. 

35 

v.S. 

300 

Schuyler,  P.  v. 

281 

S.v. 

287 

Schwartz  v.  C. 

138 

Ry.  Co.  V.  C. 

43 

C.  r. 

305 

Reg.  V. 

43,44 

Scofield,  Rex  v. 

36 

S.  V. 

43 

Scott  V.  C. 

46 

Winslow  V. 

130 

V.  P. 

801 

v.S. 

39 

s. 

S.v. 

8,  45,  65 

V.  U.  S. 

111 

St.  Briavels,  Elsmore  v. 

241 

Scovel,  S.  V. 

319 

St.  Clair,  S.  i: 

319 

Scripture,  S.  v. 

246 

St.  George,  Reg.  v. 

197,  205 

Scully,  Rex  v. 

67 

St.  John,  C.  V. 

21 

Seacord  v.  P. 

163,  164 

St.  Louis  V.  S. 

244 

Searing,  Rex  v. 

257 

St.  Valaire,  P.  v. 

268 

Scarls  V.  Viets, 

231 

Saels,  S.  V. 

131,  169 

Sears,  S.  v. 

204 

Salisbury,  Rex  v. 

298 

Sedgwick,  Stanton  v. 

129 

Salmon,  Reg.  v. 

32 

Sedley's  Case, 

11 

Salvi,  Reg.  r. 

112 

Seller  V.  P. 

42 

Sam,  S.  v. 

41 

Sflf,  Rex  V. 

32 

Sammons,  Williamson  v. 

128 

Sellew,  Hoard,  etc.  v. 

142 

Sampson,  C.  v. 

255 

Sellis,  Rex  v. 

211 

Ilainhy  v. 

257 

Selway,  Reg.  i". 

237,  288,  290 

V.  Henry, 

150 

Seniple,  Rix  i;. 

263 

Reg.  I'. 

304 

Senior,  Reg.  v. 

26,35 

Sanders  r.  P. 

134 

Serlestcd's  Case, 

313 

V.  S. 

71 

Serne,  Reg.  '•. 

29,  213 

Sanderson  C.  v. 

156 

S.  K.  Rv.,  Whitfield  v. 

^F 

Sanils,  P.  V. 

10 

Setter,  S.  r. 

1^5 

Sandy,  S.  i-. 

243 

Severance  v.  Carr, 

281 

Sankey,  C.  v. 

325 

Sexton  r.  California, 

85 

Sarony,  S.  v. 

300 

Shade,  Ceier  v. 

22 

Sasser  v.  S. 

324 

Shafcr  v.  S. 

263 

Sattler  v.  V. 

318 

Shaflier  v.  S. 

183 

Saunders,  Reg.  v. 

12,  200,  232 

Shaler,  Ricker  v. 

162 

TABLE   OF    CASES, 
[References  are  to  pages.] 

Xi] 

Shall,  P.  V. 

323 

Slack,  C.  V. 

102 

Sliamiau,  Reg.  v. 

322,  327 

P.   V. 

183 

Water  Co.  v. 

271 

Slade,  Cooper  u. 

125 

Sharpe,  Reg.  v. 

25 

Slagle  V.  S. 

191 

Sharpless,  C.  v. 

12,  153 

Slattery,  C.  v. 

20 

Sliattuck,  C.  V. 

150 

V.  P. 

191 

Shauglinessy,  P.  v. 

265 

V.  S. 

209 

Shaw,  C.  V.                    96, 

167,  254,  262 

Slaughter  v.  S. 

18, 110 

P.   V. 

118, 265 

Slingerland,  S.  v. 

287 

S.  r. 

257 

Sloane,  S.  v. 

228 

Shed,  C.  V. 

56 

Slowley,  Reg.  v. 

278 

Shearm  v.  Burnard, 

96 

Small  V.  C. 

219 

Sheffill  V.  Van  Deusen, 

157 

Reg.  V. 

267 

Slieftall,  Ry.  Co.  i--. 

158 

Smiley,  S.  v. 

184 

Slieklon,  P.  v. 

173 

U.  S.  V. 

80,  254 

Shelledv,  S.  v. 

227 

Smith  V.  C. 

15,  46,  169 

Shellmire,  U.  S.  v. 

135,  136 

C.  V.                  75 

,77, 

132, 

289,  295 

Shepherd  v.  P. 

240 

Dishon  v. 

124 

Reg.  V. 

34,  225 

v.V. 

2, 

171 

173, 279 

S.  V. 

206,211 

F.v. 

285,  315 

Shepherd's  Case, 

317 

Reg.  .;.   31,  32,  34,  39 

,41, 

224,  279, 

Sheppard,  Rex  v. 

37,  268 

319, 

321,325 

Sheriff,  C.  v. 

144 

Re.x  V. 

33, 

244, 

2.50,  293 

Sherley  v.  Riggs, 

129 

v.S.      2,12,61, 

117, 

118 

156,  182 

Shernier,  S.  v. 

284 

191,  196,  199, 

200, 

203, 

215,  241, 

Sherras  i-.  De  Rutzen, 

53 

S.  V.          2,  38,  58,  59 

,66, 

162,  186, 

Shertzer,  C.  v. 

280 

206, 

212, 

227 

296,  323 

Sliickle,  Reg.  v. 

257 

Stotesbury  v. 

126 

Shields,  S.  v. 

232 

U.  S.  i: 

1,296 

Shindell,  C.  v. 

151 

Smyth,  Rex  v. 

152 

Shippey,  S.  r. 

45 

Smoke,  Patrick  v. 

136 

Siiippley  V.  P. 

268 

Snap  V.  P. 

316 

Ship  worth,  Reg.  u. 

140 

Sneed,  C.  v. 

63 

Shoemaker  v.  S. 

214 

Sneff,  S.  V. 

17 

Sholes,  C.  V. 

107 

Snelling,  C.  v. 

156 

235,  236 

Siioppee,  Mortin  v. 

203 

Snow,  C.  V. 

194 

Shortall,  C.  v. 

62 

S.  V. 

61,  148 

Shorter  v.  P. 

6G 

Snowley,  Rex  v. 

297 

Shupe,  S.  V. 

134 

Snyder  r.  C. 

235 

Shurtliff,  S.  V. 

71,  325 

Li  Re, 

302,  309 

Sienkiewicz,  S.  v. 

298 

V.  P. 

240 

Sikes  V.  S. 

254 

Soares,  Rex  v. 

73 

Sillem,  Atty.-Gen.  v. 

167 

Soley,  Reg.  v. 

148 

Silsbee,  C.  v. 

10 

Sollers  V.  Soliers, 

257 

Silvari,  Hardin  v. 

139 

Solomons,  Reg.  v. 

262,  265 

Silver  V.  8. 

133 

Sommerville,  S.  v. 

143 

Silverlock,  Hoare  v. 

156 

South,  S.  V. 

281 

Simmons  v.  Kelley, 

126 

So.  Ky.  Co.,  S.  V. 

25 

v.S. 

74,  236,  289 

Southerton,  Rex  v. 

7 

S.V. 

210 

Spalding,  Rex  v. 

240 

V.  U.  S. 

108 

Spann  v.  S. 

45 

Simons,  Rex  v. 

238 

Speer,  C.  v. 

813 

S.  V. 

131,  132 

Speiden  v.  S. 

18 

Simpson,  Reg.  v. 

260,  267 

Spencer,  Reg.  v. 

225 

226,  293 

V.  S. 

146 

Rex  V. 

301 

Simpson's  Case, 

226 

V.  S. 

45,  234 

Sims,  S.  V. 

203,  206 

Spenser,  S.  «. 

49 

Sinclair,  Reg.  v. 

19,  202 

Spiegel,  S.  v. 

243 

Skilbrick,  S.  v. 

265 

Spiller,  Rex  v. 

159,  226 

xlii 


TABLE   OF  CASES. 

[References  are  to  pages.] 


Sprague,  Manning  v. 

131 

Springer,  C.  v. 

311 

Springfield,  C.  v. 

101 

V.  S. 

51 

Spurgeon,  Reg.  v. 

283 

Spyring,  Toogood  v. 

158 

Squire,  C.  v. 

111 

Hex  V. 

294,  296 

IK  S. 

eO,  185 

Squires,  C.  v. 

193 

Staats,  U.  S.  v. 

8 

Stabler  v.  C. 

169 

Stainer,  Reg.  v. 

298 

Staicup,  S.  V. 

127,  148 

Stambaugli,  C.  v. 

172 

Stanley,  P.  v. 

116 

r.  S. 

83 

S.  r. 

302,  303 

U.  S.  V. 

135 

Stansbury  v.  Marks, 

140 

Stanton  v.  Sedgwick, 

129 

S.  1'. 

29,  59 

Stapleton,  Rex  v. 

42 

Starin  v.  P. 

74 

Stark,  S.  v. 

71 

Starr,  S.  v. 

217 

Stearns,  C.  v. 

295 

V.  Fellier, 

130 

Stebbins,  0.  i-. 

55,  282,  283 

Stedniaii,  Reg.  r. 

217 

Steele  v.  Southwick, 

155 

Steimling,  C.  v. 

259 

Stein  V.  S. 

11 

Stentz,  S.  V. 

6 

Stephens  v.  C. 

61 

V.  Myers, 

203 

Reg.  V. 

72,  161 

V.  S. 

200 

U.  S.  V. 

165,  11)6 

Steplienson,  C.  v. 

244,  327 

S.v. 

134 

Stern  v.  S. 

58,  59 

Stevens,  P.  v. 

255 

Rex  V. 

95 

V.  S. 

270 

Stevenson  i-.  Gray, 

184 

Steventon,  Rex  v. 

172 

Stevick  V.  C. 

104 

Steward,  Atty.-Gcn.  v. 

162 

Stewart,  Caton  v. 

124 

P.   V. 

169,  200 

Reg.  V. 

267 

V.  S. 

1.S8,  228 

S.  r.                          89, 

172,  173,  255 

Slice,  A'r  parte, 

140 

Sticknev,  S.  v. 

17 

Stillwefl  V.  S. 

275 

Siinson,  P.  v. 

265 

Stites,  P.  V. 

166 

Stock,  Rex  V.  263 

Stocktord,  S.  v.  173 

Stocking,  P.  V.  99 

V.  S.  114 

Stockley,  C.  v.  134 

Stoffer  V.  S.  66,  227 

Stokes  V.  P.  3,  215 

Stone,  C.  V.  97 

V.  Nat.  Ins.  Co.  332 

P.  V.  14 

Reg.  V.  305 

Rex  V.  22 

r.  S.  317 

Stopford,  Reg.  v.  39 

Storey  v.  S.  62,  67 

Storr,  Rex  v.  14 

Stotesbury  v.  Smith,  126 

Stotts,  S.  V.  126 

Stover  V.  115 

Stow  ('.  Converse,'  155 

Stovve,  Reg.  i".  62 

Stoweli,  Uavies  v.  128 

Stoyell,  S.  V.  189 

Strat,  S.  V.  136 

Stratton,  C.  v.  199,  202 

Rex  V.  25,  69 

S.  V.  323,  325 

Strauder,  S.  v.  49 

Strauss,  Re  88 

Straw,  S.  V.  148,  171 

Streeter,  Danforth  v  129 

Reg.  V.  320 

Streety  v.  Wood,  158 

Stripling  v.  S.  201 

Stroll,  S.  V.  313 

Strong,  U.  S.  v.  279 

Strupney,  C.  v.  245 

Stuart  V.  Stuart,  142 

Stupp,  In  re,  86 

Sturock,  In  re,  140 

Sucsser,  P.  v.  213,  214 

Sullens,  Rex  r.  273 

Sullivan,  Bo  wen  v.  271 

V.  C.  118 

C.  V.  231 

Rex  V.  32 

V.  S.  191 

Sulstnn  V.  Norton,  124 

Summers,  Hex  v.  262 

Sumner,  S.  c.  147,  148 

Sun  Ins.  Co.,  Lawton  v.  332 

Sutton,  lleg.  V.  6 

Hex  i-..  fi 

Swartz,  Meckman  v.  22 

Swift  Run  etc.,  C.  v.  48 

Swind.iil,  Keg.  v.  23,  73 

Swope  V.  Lis.  Co-  22 

Sylva,  P.  i;.  206 


TABLE   OF   CASES. 


xliii 


[References  are  to  pages.] 


T. 

Tidwell,  S.  v. 

23,  186 

Tim  mens,  S.  v. 

187 

Taber  v.  Jenny, 

256 

Timmons  v.  S. 

245 

Taintor,  U.  S.  v. 

27,  35 

Tindall  v.  Westcott, 

142 

Taplin,  Ilex  i-. 

235 

Tinkler,  Reg.  v. 

60 

Tarrango  v.  S. 

261 

Tipton  V.  S. 

12 

Tarrence,  Hoskins  v. 

254 

S.  V. 

141 

Tarver  v.  S. 

205 

Titus,  C.  V. 

270 

Taugher,  P.  v. 

275 

Tiveran,  Re, 

86 

Taylor,  C.  v. 

13,  82,  150 

Tobey,  Bloss  v. 

240 

v.P. 

164 

Tobin,  C.  v. 

6,  137 

P.  V. 

240 

V.v. 

48 

Reg.  V. 

77,  78,  82,  328 

Todd  V.  Hawkins, 

158 

Rex  V. 

10,  110,  289,  290 

Reg.  V. 

37 

V.  S. 

3,  147,  223,  232 

Tollett,  Reg.  v.  _ 

281 

S.v. 

162,  256,  260 

ToUiver,  C.  v. 

99,  115 

U.  S.  V. 

226 

Tolson,  Reg.  v. 

69,  60,  185 

Teague  v.  S. 

59 

Tom,  S.  V. 

175 

Tearney,  Powder  Co 

V.                     162 

Tomlin,  S.  v. 

301,  302 

Teischer,  Resp.  v. 

10 

Tomlinson,  P.  v. 

324 

Telegram  Co.  v.  C. 

44 

Tompkins  v.  C. 

64 

Tennessee  v.  Davis, 

85 

Johnson  v. 

202,  203 

Tenney,  C.  v. 

109 

Tomsky  v.  Court, 

143 

Terrell  v.  S. 

210 

Tomson,  Rex  v. 

213 

Terry,  Ex  parte, 

139,  140 

Toogood  V.  Spyring, 

158 

Matthews  v. 

198 

Toole,  S.  V. 

11,  163,  241 

U.  S.  V. 

42 

Tooley,  Reg.  v. 

220 

Thalheim  v.  S. 

20 

Toozer  v.  S. 

139 

Tliallhiiner  u.  BrinkerhofE,                129 

Torbett,  Treadwell  v. 

21 

Thallman,  Reg.  v. 

12 

Tores  v.  S. 

188 

Thatcher,  S.  v. 

305,  309 

Tornances  v.  Melsing, 

142 

Thiele,  S.  o. 

49 

Toshack,  Reg.  v. 

322,  327 

Thomas,  C.  v. 

194,  231 

Totman,  S.  v. 

67 

V.  Croswell, 

155,  159 

Towers,  Reg.  v. 

30,  222 

Ex  parte, 

12 

Townley,  Reg.  u. 

257,  258,  259 

V.  P. 

302 

Townsend,  S.  v. 

149 

P.  y. 

305 

Towse,  Reg.  v. 

56 

Reg.  V. 

279 

Trask,  S.  v. 

132 

Rex  V. 

50 

Travis,  P.  v. 

132 

V.  S. 

24,  73,  234 

Treadwell  v.  Torbert, 

21 

V.  Thomas, 

280 

Trebilcock,  Reg.  v. 

284 

Thompson,  C.  v. 

35,  135,  226 

Treble,  Rex  v. 

323 

P.  V. 

279,  280 

Trist  V.  Childs, 

125 

Reg.  V. 

277 

Truett,  Ming  v. 

125 

Rex  V. 

219,  260 

Trusiow  V.  S. 

20,  284 

V.  S.          17,  63, 

137,  184,  197,  2-36, 

Tryoii,  C.  v. 

41 

246,  260,  272 

Tuani,  Archbishop  of,  v. 

Robeson,  154 

S.  IK                    64,  66,  67,  152,  209 

Tubbs,  C.  V. 

128 

Thomson,  S.  v. 

66,  295 

V.  Tukey, 

91 

U.  S.  V. 

39 

Tuberville  v.  Savage, 

204 

Thorn,  Rex  v. 

314 

Tuck,  C.  (.'. 

103, 106 

Thornton,  S.  v. 

109,  187 

Tucker,  C.  v. 

243 

Thorp,  Hex  v. 

175 

U.  S.  V. 

84 

Thristle,  Reg.  v. 

274 

Tuckerman,  C.  v. 

296 

Thurborn,  Reg.  v. 

269 

Tuckwell,  Reg.  v. 

72 

Timrmond  v.  S. 

328 

Tukey,  Tubbs  v. 

91 

Thurston,  S.  v. 

263 

Tull,  S.  V. 

20 

Tibbetts,  Mitchell  v. 

84 

Tully  V.  C. 

74 

Tice,  S.  V. 

40 

U.  S.  V. 

330 

xliv 


TABLE   OF   CASES. 
[References  are  to  pages.] 


Tiimalty  v.  Parker, 

280 

Vidalla,  S.  v. 

21 

Tumey,  S.  v. 

298 

Viets,  Searles  v. 

231 

Turlington,  S.  v. 

62 

Vigel,  U.  S.  V. 

8 

Turner,  P.  v. 

140, 

142 

Vincent,  Ex  parte, 

249 

Rex  V. 

7, 

171 

Reg.  V. 

148 

Turnipseed  v.  S. 

323 

Voigbt,  S.  V. 

26 

Turns  v.  C. 

99 

Vowels,  S.  V. 

3 

Tussaud's  Ltd.,  Monson  v. 

156 

Tuttle  V.  P. 

135 

Tyler,  P.  v. 

80, 

115 

w. 

Reg.  V. 

70 

V.  S. 

281 

Waddington,  Rex  v. 

160,  180 

Tyson,  Reg.  v. 

136 

Wade,  C.  v. 
Reg.  V. 
Wadswortb,  P.  v. 

109 

282 
295,  298 

u. 

Wagbalter,  S.  v. 
Wagner  v.  P. 

18 
48 

Uhl  V.  C. 

42 

S.v. 

118 

Ulricli  V.  C. 

58 

Wagoner  v.  S. 

232 

Underbill  v.  Hernandez, 

80 

Waggerstaff,  Reg.  v. 

84,35 

Underwood,  S.  v.     20,  83,  199 

218, 

229 

Wait  V.  C. 

175 

Union  Ins.  Co.,  Brown  v. 

332 

Waite,  C.  v. 

57 

Updegraph  v.  C. 

1, 

180 

Reg.  V. 

232 

Uprichard,  C.  v. 

84 

Wakefield,  Rex  v. 

174 

Upton,  C.  V. 

104 

Wakeling,  Rex  v. 

305 

U.  S.  Cable  Co.  v.  Anglo-Am. 

Co. 

80 

Wakely,  P.  v. 
Walbrun,  P.  i'. 
Walden,  C.  v. 

306 

282 

36,  37,  316 

V. 

Walker  v.  Brewster, 
C.v. 

161 
300 

Vaiden  v.  C. 

66 

227 

P.  V. 

51 

Vallejo  V.  Wbeeler, 

332 

Reg.  V. 

118 

Van  Alstyne,  P.  v. 

187 

Rex  V. 

255 

Van  Blarcuni,  P.  v. 

240 

V.  S.                    23, 

74,  78,  245,  248 

Van  Butcbell,  Rex  v. 

226 

S.  V. 

278 

Vance,  S.  v. 

224 

229 

Wall,  Ex  parte, 

142 

Vanderbilt,  P.  v. 

161 

Rex  V. 

823 

Vandercomb,  Rex  v. 

111 

S.v. 

131,  134 

Van  Deusen,  ShefEll  v. 

1.57 

Wallace,  P.  v. 

187 

Van  Houten  v.  S. 

192 

S.v. 

181 

S.  V. 

191 

V.  U.  S. 

68 

Vann  v.  S. 

220 

Waller  v.  S. 

231 

Van  Sickle,  C.  v. 

164 

Wallis,  Reg.  v. 

261 

Van  Steenbergb  v.  Kortz, 

134 

Wails,  Reg.  v. 

288,  290 

Vantandillo,  Rex  v. 

10 

V.  S. 

>          39,  261 

^^•lnvalkenbu^g  v.  S. 

2 

Walne,  Reg.  v. 

304 

Varley,  Rex  v. 

328 

Walsb  V.  P. 

15,  123,  169 

Varncr  v.  S. 

17 

P.  v. 

68 

Varney,  C.  v. 

99 

Rex  V. 

260 

Vascl,  S.  V. 

126 

Walsbe,  Pettit  v. 

86 

Vattier,  Key  v. 

129 

130 

Walter,  Lewis  v. 

159 

Vaugban,  Rex  v. 

124 

P.  I'. 

49 

S.  V. 

108 

315 

Walton  i\  S. 

186 

Vaux's  Case, 

71 

S.  V. 

296 

^'orberg  v.  S. 

263 

Waltz,  S.  V. 

281 

Vert  lie  v.  Clive, 

173 

Warburton,  Reg.  v. 

171,  174 

A'ickery,  S.  v. 

311 

Ward,  Avery  v. 

134 

Vicknair,  S.  v. 

194 

V.  P. 

76,  254,  287 

Vidal  V.  Girard's  Ex. 

1 

Rex  11. 

326 

TABLE   OF   CASES. 
[References  are  to  pages.] 


Ward  V.  S. 

257 

Weston  V.  C. 

U.  S.  V. 

84 

S.  V. 

Wank'll,  C.  ;;. 

192 

West  Virginia,  Eaton 

Warden  v.  8. 

287 

Weyman  i'.  P. 

Waricksliall's  Case, 

115 

Whaley,  P.  v. 

Warren,  C.  v. 

2,14, 

290, 

314 

Wheat,  S.  v. 

P.  V. 

111, 

299 

Wheatley  v.  C. 

V.  S. 

241, 

257 

Rex.  V.       1,  6,  14 

Warren  and  Johnson,  C. 

V. 

2 

Wheeler,  P.  v. 

Washington  v.  S. 

240, 

262 

S.  V.  _ 

S.  y. 

198 

Vallejo  V. 

Wasservogle,  P.  v. 

304 

Whisler,  Caulkins  v. 

Water  Co.  v.  Sharman, 

271 

Whitcomb,  C.  v. 

Waterford  v.  P. 

11 

Terr.  v. 

Waterman,  C.  v. 

172 

White,  Ball  v. 

v.Y. 

322 

v.C. 

V.  S. 

89 

C.v. 

Waters,  Reg.  v. 

145 

V.  Hass, 

Hex  V. 

23 

Livermore  v 

S.  V. 

824 

Reg.  v. 

Watson,  Reg.  v. 

11 

Rex  V. 

Rex  V. 

154 

273 

r.  S. 

S.  y. 

278 

S.  V. 

Watts,  Reg.  v. 

255, 

274 

292 

Whitehead,  C.  v. 

Rex  V, 

164 

Rex  V. 

V.  S. 

75 

Whiteside  v.  Lowney, 

Weatherby,  S.  v. 

181 

Whitfield  V.  S.  E.  Ry. 

Weaver,  Brown  v. 

62 

Whitney  v.  S. 

V.  Lloyd, 

155 

Whitridge,  Davis  v. 

V.  S. 

285 

Whittaker,  C.  v. 

Webb,  Ballenthie  v. 

165 

Whitten  v.  S. 

Reg.  V. 

11 

267 

Whittemore,  S.  v. 

Rex  V. 

160 

283 

324 

Whitten  v.  S. 

Weber,  S.  v. 

249 

Whittier,  U.  S.  v. 

Webster,  C.  v.        27,  37 

,117, 

212, 

214, 

Whorley  v.  S. 

21(5 

217 

223 

Whyte,  S.  v. 

Reg.  V. 

280 

Wickliani  v.  Conklin, 

Weekly,  S.  v. 

147 

Wideman,  Johnson  v. 

Weiss,"C.  V. 

59 

Widenhouse,  S.  v. 

Welch  V.  Barber, 

141 

143 

Wier's  Appeal, 

P.  V. 

59 

Wight,  U.  S.  V. 

Reg.  V. 

296 

Wilcox  r.  Henry, 

V.  S. 

185 

V.  Nolze, 

S.v. 

56 

r.  P. 

Wellington,  C.  v. 

97 

v.S. 

Well  man,  S.  v. 

254 

287 

S.v. 

Welsh,  V.  P. 

279 

Wildenhus's  Case, 

Reg.  V. 

217 

Wild's  Case, 

Rex  V. 

328 

Wiley,  P.  V. 

S.v. 

69 

Reg.  V. 

Wesley  v.  S. 

66 

Wilgus,  C.  V. 

Weniyss  v.  Hopkins, 

107 

Wilkins,  Rex  v. 

Wenman  v.  Ash, 

157 

Wilkinson,  C.  v. 

West,  Rea-.  v. 

191 

,211 

271 

Rex  i>. 

V.  S. 

322 

Wilkinson's  Case, 

Westbeer,  Rex  v. 

256 

Willard  v.  S. 

Westcott,  Tindall  v. 

142 

Willev  V.  S. 

Westfall,  S.  V. 

67 

William  Arthur,  U.  S 

Westlake,  S.  v. 

64 

William  v.  S. 

xlv 


76 

319 

;.  88 

265 

55,  56,  125,  126 

200 

213 

4,  15,  58,  167,  313 

301,  302 

324 

332 

325 

306 

193 

256 

194 

83,  204,  205,  285 

323 

254 

262,  286,  320 

134,  163 

134,  247 

157,  296 

169 

175 

280 

157 

21 

150 

187 

143 

138 

50,52 

114 

74 

261 

128 

142,  143 

152 

162 

18 

162 

88 

19 

45 

317 

81 

68 

259,  319,  320 

319 

302 

267,  273 

11 

280 

260 

114 

191 

37 

2 


xlvi 


Williams,  Att'y-Gen'l  v. 

v.C. 

C.v. 

Darling  v. 

V.  Karnes, 

P.  V.  50,  52, 

Reg.  V.      16,  42,  16(5,  168, 

Eex  V.  10,  37,  39, 

V.  S.  18,  20,  41,  58,  59, 

187,  232,  236,  287, 

S.  V.  11,  133,  138, 

249,  269, 

U.  S.  V. 
Williamson  v.  Pender, 

Reg.  r. 

V.  Sammons, 

S.  i;. 
Willis  V.  P. 

Rex.  V. 

V.  S. 

S.  u. 
Wills  V.  S. 
Willspaugh,  S.  v. 
Wilmot,  P.  V. 
Wilson  V.  Nations, 

V.  Noonan, 

v.V. 

P.  V. 

Reg.  V.  98, 

Rex  V. 

V.  S.        51,  111,  146,  147, 
216, 

S.  V.       108,  167,  176,  181, 
Wiltberger,  U.  S.  v. 
Windsor,  S.  v. 
Wing,  C.  V. 
Wingfield,  Beeley  v. 
Winkwortli,  Hex  v. 
Winslovv  V.  Nayson, 

V.  IVy, 
Winter  v.  S. 
Winters,  P.  v. 

Rohrheimer  v. 
Winthrop,  S.  v. 
Wisdom,  S.  v. 
Wise,  S.  r. 
Wodston,  Rex  v. 
Woily,  Hex  v. 
AVolcott,  S.  v. 
AVolf,  S.  V. 
Wolfstein  v.  P. 
AVonson  v.  Sayvvard, 
Woo<l,  C.  V. 

Hyatt  V. 

V.  McGuire, 

v.V. 

P.  V. 

V.  Phillips, 

Rex  V. 


TABLE   OF   CASES. 

[References  are  to  pages.] 


161 

Wood  V.  S. 

186,  187 

234 

Streety  v. 

158 

316,  250 

Woodfall,  Rex  v. 

27 

228 

Woodgate,  Wright  v. 

158 

155 

AVoodham  v.  Allen, 

21 

214,  258 

Woodluirst,  Peg.  r. 

200, 201,  233 

200,  265 

Woodman  v.  Kilbourn  Mfg.  Co.       161 

126,  305 

Woodriitf,  P.  V. 

263 

,  76,  151, 

Woods,  McNeal  v. 

241 

289,  312 

V.  P. 

117 

153,  232, 

Woodward,  P.  v. 

287 

285,  287 

Reg.  V. 

321 

115 

V.  S. 

318 

142 

S.v. 

123 

23,  301 

Woody,  P.  V. 

72, 215 

128 

Woolley,  Reg.  v. 

303,  308 

317 

Woolridge,  S.  v. 

133 

46 

Woolsey,  v.  S. 

243 

280 

Woolston's  Case, 

179 

289 

Work  V.  Corrington, 

89 

245 

Worrall,  U.  S.  v. 

82,  169 

84 

Wortley,  Reg.  v. 

257 

189 

Wray,  S.  v. 

63,  70 

233 

Wright,  C.  V. 

154 

136 

McClory  v. 

117 

155 

V.  Meek, 

129 

284 

V.-P. 

295 

140 

P.  *;. 

42,  48,  103 

264,  298 

Rex  V. 

19,  284 

151 

v.S. 

12,  182,  233,  318 

187,  201, 

S.v. 

233 

291,  329 

V.  Woodgate, 

158 

246,  255 

AVright's  Case, 

326 

210 

Wyatt  V.  S. 

232 

46 

8.  V. 

132 

13 

Wyekoff,  S.  v. 

75 

22 

Wylie  V.  Elwood, 

163 

236 

Wyman,  C.  v. 

296 

142 

Reese  v. 

301 

130 

Wj'mberley,  S.  v. 

132 

71 

Wynegar  v.  S. 

293 

63 

Wynn,  Reg.  v. 

286 

22 

V.  S. 

SO 

211 

Wynne,  Itex  v. 

271 

261 

21 

1 

Y. 

256 

118 

Yancey,  S.  v. 

67 

74,78 

Yanz,  S.  v. 

217 

272 

Yates  V.  P. 

228 

254 

Reg.  I'. 

137 

191 

V.  liussell. 

142 

150 

Ye  Wan,  Terr.  v. 

2 

129 

Yoes  I'.  S. 

6 

136 

Yong's  Case, 

213 

273 

York,  C.  V. 

214,  224 

150 

Reg.  V. 

284 

236 

Rex  V. 

41 

TABLE   OF   CASES. 
[References  are  to  pages.] 


xlvii 


York,  S.  V. 

283 

Youngstown,   Youngstown 

Trus- 

Young,  C.  V. 

294 

tees  V. 

162 

V.  Ilicliins, 

257 

Yousling,  Percival  v. 

162 

Mead  v. 

324 

Yslas,  P.  V. 

196,  204 

lleg.  V. 

199 

V.  Rex, 

302,  313 

r-.  S. 

11,  21,  282 

z. 

S.  y. 

2, 241,  303,  307, 326 

U.  S.  V. 

45 

Zellars,  S.  v. 

67 

Younger,  S.  i-. 

174 

Zes  Cloya,  U.  S.  v. 

189 

Young's  Case, 

174 

Zichfield,  S.  v. 

26,  185 

Zink  V.  P. 

265,  312 

TABLE   OF   CORRESPONDING   SECTIONS  IN 
THE   FIRST   AND   THIRD   EDITIONS. 


Section 
1st  ed. 

I 

Sectiok 

3ded. 

1 

Section 

1st  ed. 

40 

Section 
3d  ed. 
117, 118,  119,  122 

2 

2, 

3,4 

41 

77,  78-80,  82,  83 

3 

8 

42 

95 

4 

7 

43 

2 

5 

53 

44 

198 

6 

26 

45 

200 

7 

27 

46 

195 

8 

32, 

112 

47 

164 

9 

33 

48 

193 

10 

51 

49 

250 

11 

52 

50 

251 

12 

35 

51 

252 

13 

36 

52 

253 

14 

37, 

68 

53 

254 

15 

38 

54 

255 

16 

39, 

40 

55 

205 

17 

41 

56 

207,  208,  209 

18 

42 

57 

210 

19 

43 

58 

211 

20 

45 

59 

212 

21 

46 

60 

213 

22 

47 

61 

209 

23 

48 

62 

214 

24 

49 

63 

215 

25 

9 

64 

216 

26 

10 

65 

339 

27 

11 

66 

143,  144,  145 

28 

18 

67 

196 

29 

183, 

184,  185 

68 

194 

30 

69 

69 

140 

31 

70, 

71 

70 

203 

32 

72 

71 

256 

33 

73 

72 

257 

34 

74 

73 

258 

35 

75 

74 

259 

36 

76, 

130 

75 

260,  261 

37 

124 

76 

262 

38 

123 

77 

263 

39 
39a 

125 
3 

78 
79 

264 
265 

COKRESrONDING    SECTIONS. 


Section 
1st  ed. 

Section 
3ded. 

Section 

1st  ed. 

Section 
3ded. 

80 

266 

130 

221 

81 

267 

131 

222 

82 

318 

132 

224 

83 

319 

133 

225 

84 

320 

134 

226 

85 

186 

135 

227 

86 

187 

136 

228 

87 

188 

137 

229 

88 

189 

138 

230 

89 

190 

139 

231 

90 

191 

140 

232 

91 

154 

141 

233 

92 

155 

142 

234 

93 

158 

143 

235 

94 

336 

144 

236 

95 

171 

145 

237 

96 

298 

146 

239 

97 

299 

147 

199 

98 

300 

148 

270 

99 

301 

149 

277 

100 

302 

150 

280 

101 

303 

151 

281,  282 

102 

304 

152 

283 

103 

146 

153 

284 

104 

177 

154 

278,  285 

105 

141 

155 

286 

106 

240 

156 

288,  289 

107 

305 

157 

289,  291 

108 

306 

158 

288 

109 

307 

159 

290 

110 

310 

160 

271,  272, 

111 

311 

161 

274 

112 

312 

162 

276 

113 

313 

163 

292 

114 

314 

164 

293 

115 

316 

165 

294 

116 

317 

166 

295 

117 

167 

167 

296 

118 

168 

168 

297 

119 

169 

169 

201 

120 

170 

170 

172 

121 

329 

171 

173 

122 
123 
124 

330 
331 
332 

172 
173 
174 

174 
175 
176 

125 

334 

175 

143 

126 

202 

176 

144, 145 

127 

218 

177 

321 

128 

219 

178 

322 

129 

22Q 

179 

323 

73,  275 


CORRESPONDING    SECTIONS. 


li 


Section 

Section 

Section 

1st  eel. 

3ded. 

1st  ed. 

180 

217 

198 

181 

178 

199 

1S2 

179,  180,  181 

200 

18.3 

182 

201 

184 

147 

202 

18.5 

148 

203 

186 

149 

204 

187 

150 

205 

188 

15i 

206 

189 

152 

207 

190 

153 

208 

191 

338 

209 

192 

241 

210 

19.3 

242 

211 

194 

243 

212 

195 

244 

213 

196 

324 

214 

197 

325 

215 

Section 
3d  ed. 

328 
159 
160 
161 
162 
165 
166 
245 
246 
247 
248 
197 
203 
143 
135 
136 
138 
139 


SECTIONS   ADDED   BY   THE   EDITOR   OF 
THE  SECOND  EDITION. 


The  following  sections  and  parts  of  sections  were  added  by  Professor  J.  H. 
Beale,  Jr.,  of  Harvard  University  Law  School,  the  Editor  of  the  second  edition. 


Section 

Section 

Section 

3  (1st  par.) 

120,  121 

268,  269 

5,  6 

122  (2d  par.) 

272  (Island  2d  par.) 

12-17 

126-133 

275  (3d  and  4th  par.) 

19-25 

137 

278  (2d  par.) 

28-31 

142 

279 

32  (2d  and  3d 

par.) 

156,  157 

282  (end) 

34 

163 

283  (2d  and  3d  par.) 

44 

182  (3d  par.) 

287 

SO 

184  (2d  par.) 

289  (1st  and  2d  par.) 

54-67 

192 

291  (2d  par.) 

68  (2d  par.) 

204 

308,  309 

80  (1st  and  2d 

par.) 

205  (2d  par.) 

315 

81 

206 

317  (2d  par.) 

82  (2d  par.) 

208  (2d  par.) 

326,  327 

84-94 

223 

333 

96-111 

238 

335 

113-116 

249 

337 

THE  FOLLOWIXG  SECTIONS  AND  PARTS  OF  SECTIONS 
HAVE  BEEN  ADDED  BY  THE  EDITOR  OF  THE  THIRD 
EDITION. 

Section  Section 

2  (2d,  3d,  and  4th  pars.)  28  (2d  par.  last  half,  3d  par.  all  but 

3  (4th  par.,  last  part)  first  sen.,  4th  par.  last  half,  6th  par.) 
5  (1st  par.,  last  half  2d  par).  30  (2d  par.,  3d  par.  last  half,  4th  par. 

10  (middle)  first  half,  5th  and  6th  pars.) 

14  (last  part)  31  (2d  par.) 

15  (middle)  32  (1st  par.  last  part,  3d  par.  last  half, 
19  (2d  par.)  4th  and  5th  pars.) 

21  (last  half)  34  (1st  par.  last  half,  2d  and  3d  pars.) 

22  (1st  par.  first  and  last  parts,  2d  par.    .36  (1st  par.  middle) 

last  half)  37  (1st  par.  first  and  last  parts) 

22  a  38  (3d  and  4th  pars.) 

23  (1st  par.  last  half)  43  (2d  par.) 

23  a  (1st  par.  first  half,  2d  par.)  47  (1st  par.  last  part,  2d  par.  first  half, 
23  6  3d  par.) 

23  c  47  a 

24  (1st  par.  all  but  end)  47  b 

25  (last  part)  48  (2d  par.) 
27  (1st  part)  50  (last  part) 


liv  SECTIONS   ADDED. 

Section  Section 

51  (middle)  243  (Lst  par.  middle,  2d  par.  first  part) 
.52  (2d  pai'.,.3d  par.  firi5t  part,  4th  par.)     244  (2d  par.  last  part) 

58  (first  part)  247  (1st  par.  last  part) 

59  (last  half)  263  (last  part) 

60  (2d  par.)  271  (1st  par.  last  part) 

62  (last  half)  272  (2d  par.  last  part,  4th  par.) 

64  (1st  par.  last  half,  2d  and  3d  pars.,     273  (2d  par.) 
5tli  par.  last  part)  275  (4th  i)ar  ) 

65  (last  half)  277  (1st  par.  last  part,  2d  and  3d  pars., 

67  (1st  par.  last  part)  5th  par.) 
67 «  277  n 

68  (2d  par.  last  part,  3d  par.)  278  (2d  par.) 

69  (3d  par.,  4th  par.  except  first  sen.)     278  a  (1st  to  5th  pars.) 

77  (2d  par.)  280  (1st  par.  middle,  2d  par.) 

77  rt  281  (last  part) 

79  (1st  par.  middle,  2d  par.)  282  (1st  ])ar.  last  part,  2d  par.  last  part) 

142  a  283  (1st  par.  last  half,  3d  par.  last  part) 

148  (2d  par.  first  half)  284  (1st  jtar.    middle,  3d,  4th,  and  5th 

150  (4th  par.  last  part)  pars.) 

153  rt  285  (2d  par.  middle,  3d  par.) 

155 rt  285  a 

156  (2d  par.)  286  (1st  par.  last  half) 

176  (last  part)  287  (2d  and  3d  pars.) 

180  (1st  par.  last  part)  288  (1st  par.  last  part,  2d  par.) 

184  (1st  par.  middle,  3d  par.)  290  a 

184rt  29.')  (2d  par.  last  part) 

186  (2d  par  )  300  (1st  par.  middle) 

187  (3d  par.  end,  4th  par.  first  part,     301  (2d  par.  last  part) 
last  i)art)  302  (1st  par.  middle) 

188  (3d  ])ar.)  303  (last  part) 

196  (2d  par.  last  half)  304  (last  part) 

197  (1st  ](ar.  last  part)  306  (1st.  par.  last  part,  2d  par.  last  half) 

208  (2d  par.,  4th  par.)  308  (1st  par.  la.si  part,  2d  par.  middle) 

209  (last  part)  310  (2(1  par.) 

212  (3d  par.)  313  (1st  jjar.  last  part,  2d  par.  last  part) 

213  (2d  par.)  314  (middle) 

221  (2(1  par.  end)  315  (2d  par.  last  half) 

225  (2d  par.)  317  (2d  par.) 

227  (2(1  par.)  322  (5th  ])ar.) 

228  (3d  par.  last  half)  327  (2d  par.) 

229  (2(1  par.  middle)  334  (1st  par.  middle) 

230  (2d    par.  last    part,  4th  par.  first     338  (5th  par.  last  half) 
part) 


CRIMINAL   LAW. 


CHAPTER  I. 

OF    THE   DEFINITION   OF   CRIME,    AND    OF   CERTAIN  GENERAL 
PRINCIPLES   APPLICABLE   THERETO. 


§  1.  Crime  defined. 

6.  Tlie  Criniiual  Act. 

26.  Tlie  Criniiual  Intent. 

35.  Criminal  Capacity. 


§  53.    Intent  in  Statutory  Crimes. 
58.   Justification  for  Crime. 
69.   Classification  of  Criminals. 
77.   Locality  and  Jurisdiction. 


CRIME    DEFINED. 

§  1.  Crime  is  a  violation  or  neglect  of  legal  duty,  of  so 
much  public  importance  that  the  law,  either  common  or 
statute,  takes  notice  of  and  punishes  it.^ 

§  2.  By  What  Law  Defined.  —  Crimes  are  defined  both  by  the 
common  and  by  the  statute  laws,  —  the  common  law  prevail- 
ing, so  far  as  it  is  applicable  and  not  abrogated  by  statute,  in 
most  of  the  States  of  the  Union.^  The  general  maxims  and 
precepts  of  Christianity  constitute  a  part  of  the  common  law.^ 
The  law  of  nations,  also,  is  part  of  the  common  law.* 

^  See  4  BI.  Com.,  p.  -1,  and  note  by  Christian  (Sharswood's  ed.,  1S60)  ; 
Kex  V.  Wheatlv,  2  Burr.  1125,  1  Lead.  Cr.  Cas.  1-34,  1  Bish.  Cr.  Law, 
§32. 

2  S.  V.  Danforth,  3  Conn.  112 ;  C.  v.  Knowlton,  2  Mass.  530,  C.  1 ;  C. 
V.  Chapman,  13  Met.  (Mass.)  68. 

3  Rex  V.  Wodston,  2  Stra.  834;  Ex  parte  Delaney,  43  Cal.  478;  S.  v. 
Chandler,  2  Har.  (Del.)  553;  P.  v.  Ruggles,  8  Johns.  (N.  Y.)  290  ; 
Updegraph  v.  C,  11  S.  &  R.  (Pa.)  394;  Vidal  v.  Girard's  Executors,  2 
How.  (U.  S.)  127. 

*  U.  S.  V.  Smith,  5  Wheat.  (U.  S.)  153;  Resp.  t'.  De  Longchamps,  1 
Dall.  (Pa.)  Ill,  M.  33. 


2  CRIMINAL  LAW,  [Sect.  2. 

Wlien  tlie  older  States  were  settled  the  colonists  brought 
with  them  the  English  criminal  law  as  it  was  then^  in  force: 
this  embraced  the  English  common  law  of  crimes  and  its  then 
existing  statutory  modifications.^ 

This  general  body  of  law  was  modified  and  discarded  where 
not  applicable  to  local  conditions :  thus  the  common  law  of 
Pennsylvania  does  not  recognize  the  punishment  of  crimes  by 
the  ducking  stool.^  On  the  other  hand,  local  customs  were 
added  to  it  by  receiving  judicial  recognition  :  thus  the  exemp- 
tion, not  only  of  clergymen  of  the  Established  church,  as  in 
England,  but  of  all  denominations,  from  being  obliged  to  per- 
form certain  public  duties.^  It  was  also  further  changed  by 
acts  of  the  local  provincial  legislatures  and  by  acts  of  Parlia- 
ment specifically  extending  to  the  colonics. 

Similarly  with  the  later  settled  States  ;  they  being  settled 
by  those  who  carried  the  common  law  with  them  are  governed 
by  its  principles.^  In  Louisiana  where  the  original  body  of 
law  was  the  civil  and  not  the  common  law,  the  latter  has  been 
adopted  by  statute  as  to  the  definition  of  certain  enumerated, 
offences  and  as  to  procedure.^  In  several  States  the  common 
law  of  crimes  has  been  done  away  with  by  express  repeal 
or  by  implication  from  the  enactment  of  complete  codes  of 
criminal  law.' 

^  Compare  C.  ?',  Warren,  6  Mass.  72,  C.  11,  and  C.  v.  AVarren  and 
Jojnison,  6  Mass.  73,  C.  12. 

^  C.  V.  Leach,  1  ]\Iass.  59,  C.  9;  C.  v.  Knowlton,  ante ;  C.  v.  Newell, 
7  Mass.  245;  C.  v.  Chapman,  ante;  S.  v.  Rollins.  8  N.  H.  550;  llesp.  v. 
Mesca,  1  Dall.  (Pa.)  73,  M.  10. 

3  James  ;;.  C,  12  S.  &  11.  (Pa.)  220,  M.  7. 

^  Guardians  v.  Greene,  5  Ijinney  (Pa.),  554,  M.  5;  see  also,  Resp.  v. 
Roberts,  1  Yeates  (Pa.),  0,  M.  13. 

■'  Smith  V.  P.,  25  111.  17  ;  Re  Lamphere,  61  IMich.  105,  27  N.  W.  882; 
S.  V.  Pulle,  12  Minn.  164,  M.  16  ;  Terr.  v.  Ye  Wan,  2  Mont.  478;  crmtra, 
Estes  V.  Carter,  10  la.  400;  Vanvalkenberg  v.  S.,  11  O.  404  ;  Smith  v.  S., 
12  O.  St.  466. 

^  S.  r.  Smith,  .30  La.  Ann.  846.  In  Hawaii  the  common  law  is  in 
force  only  in  so  far  as  it  is  applicable  to  local  conditions  and  adopted  by 
the  courts :  King  v.  Agnee,  3  Ilaw.  100. 

^  William  v.  S.,  18  Ga.  356  ;  Hackney  y.  S.,  8  Ind.  494  ;  Jones  v.  S., 
59  Ind.  229  ;  S.  v.  Young,  .55  Kan.  349,  40  P.  659  ;  Re  Lamphere,  61  Mich. 


Sect.  3.]  GENERAL  PRINCIPLES.  3 

§  3.  Statutory  Crimes.  —  A  large  part  of  the  criminal  law 
of  the  jurisdictions  in  this  country  consists  of  statutes.  Every 
statute  relating  to  crime  must  be  interpreted  in  the  light  of 
the  common  law  of  crime  ;  ^  and  the  repeal  of  a  statute,  not 
substituting  other  provisions  in  the  place  of  those  repealed, 
revives  the  pre-existing  law.^ 

Statutes,  in  general,  can  have  no  retroactive  efficacy ;  and, 
especially  in  the  United  States,  all  ex  post  facto  laws,  or  laws 
which  make  criminally  punishable  an  act  which  was  not  so 
punishable  at  the  time  it  was  committed,  or  punish  an  offence 
by  a  different  kind  of  punishment,  or  in  a  different  manner, 
not  diminishing  the  punishment,  from  that  by  which  it  was 
punishable  before  the  statutes  were  passed,  are  prohibited  by 
the  Constitution  of  the  United  States.^ 

On  the  other  hand,  when  the  common  law  or  a  statute  cre- 
ating an  offence  is  repealed,  or  expires  before  judgment  in  a 
criminal  case,  judgment  cannot  be  entered  against  the  prison- 
er, unless  by  a  saving  clause  in  the  statute  excepting  pending 
cases  ;  and  in  such  cases,  if  tlie  statute  expires  after  judgment 
and  before  execution,  the  judgment  will  be  reversed  or  exe- 
cution stayed.*  But  laws  clianging  the  rules  of  evidence  or  of 
procedure  ^  do  not  come  under  the  category  of  ex  post  facto 
laws. 

If  a  statute  define  a  new  offence,  or  prohibit  a  particular 
act,  without  providing  any  mode  of  prosecution  or  punishment, 
the  common  law  steps  in  and  supplies  the  mode,  by  indict- 
ment ;  and  the  punishment,  by  fine  and  imprisonment.^     Thus 

105,  27  N.  W.  882  ;  Ex  parte  Meyers,  44  Mo.  279  ;  S.  v.  De  Wolfe  (Neb.), 
93  N.  W.  746;  S.  v.  Vowels,  4  Or.  324 ;  S.  v.  Gauut,  13  Or.  115,  9  P.  55. 

1  U.  S.  V.  Carll,  105  U.  S.  611. 

2  C.  V.  Churchill,  2  Met.  (Mass.)  118,  C.  2. 

3  Ilartung  v.  P.,  26  N.  Y.  167,  28  N.  Y.  400  ;  S.  v.  Kent,  65  N.  C.  311 ; 
Calder  v.  Bull,  3  Dall.  (U.  S.)  386. 

*  S.  V.  Daley,  29  Conn.  272;  Taylor  v.  S.,  7  Blackf.  (Ind.)  93;  C.  v. 
Marshal],  11  p"ick.  (Mass.)  350;  Ilartung  r.  P.,  22  X.  Y.  95;  C.  lu  Pa. 
Canal  Co.,  66  Pa.  41;  U.  S.  v.  Finlay,  1  Abb.  (C.  Ct.  U.  S.)  364,  Fed. 
Cas.  No.  15,099. 

5  Stokes  V.  P.,  53  N.  Y.  164;  P.  v.  Mortimer,  46  Cal.  114. 

6  Keller  v.  S.,  11  Md.  525;  C.  v.  Chapman,  13  Met.  (Mass.)  68;  S.  v. 


4  CRIMINAL  LAW.  [Sects.  4,  5. 

where  a  statute  in  separate  sections  forbade  liquor  selling  in 
various  districts;  and  provided  that  a  person  violating  sec- 
tions four,  five,  or  six  should  be  guilty  of  a  misdemeanor,  it 
was  held  that  the  common  law  supplied  the  punishment  for 
the  violation  of  section  seven. ^ 

§  4.  Criminal  Law  of  the  United  States.  —  Under  the  govern- 
ment of  the  United  States  there  are,  strictly  speaking,  no 
common  law  crimes.  That  government  has  never  adopted 
the  common  law.^  Its  criminal  jurisdiction  depends  entirely 
upon  statutory  provision  authorized  by  the  Constitution  ;  and 
where  the  statute  makes  punishable  a  crime  known  to  and 
defined  by  the  common  law,  but  does  not  itself  define  the 
crime,  the  common  law  is  resorted  to  for  tlie  definition.^ 

Crimes  committed  within  its  exclusive  jurisdiction  within 
the  States  are  by  statute  to  be  punished  in  the  same  manner 
as  such  crimes  are  punished  by  the  laws  of  the  particular 
States  where  they  are  committed.* 

§  5.  Act  and  Intent  Must  Coexist.  —  Every  common  law  crime 
consists  of  two  elements :  first,  the  voluntary  commission  of 
an  act  which  is  declared  bylaw  to  be  criminal;  second,  the 
existence  in  the  offender  of  a  state  of  mind  which  is  declared 
by  law  to  be  consistent  with  criminality.  This  principle  is 
more  briefly  expressed  in  the  rule  that  for  the  commission  of 
a  crime  a  criminal  act  must  be  done  with  criminal  intent. 
Thus,  if  the  defendant  docs  an  act  that  the  law  forbids  but 
there  is  no  accompanying  criminal  state  of  mind  there  is  no 
crime,  such  as  an  act  by  an  infant  under  seven,  or  by  an  in- 

Fletcher,  5  N.  II.  257;  S.  v.  Pattou,  4  Ired.  (N.  C.)  IG ;  C.  v.  Piper,  9 
Leigh  (Va.),  6.57. 

1  S.  V.  Parker,  91  N.  C.  050,  M.  15;  S.  v.  La  Forrest,  71  Vt.  311.  45 
Atl.  225. 

2  U.  S.  V.  Hudson,  7  Cranch  (U.  S.),  :]2;  U.  S.  r.  Coolidge,  1  ^Yheat. 
(U.  S.)  415;  Re  Greene,  52  Fed.  104;  U.  S.  v.  Britten,  lOS  U.  S.  199; 
Llaiichester  v.  Mass.,  139  U.  S.  240.  In  Oliio  and  Iowa  the  same  theory 
prevails:  Mitchell  v.  S.,  42  O.  St.  383;  Estes  v.  Carter,  10  la.  400.  In 
Indiana,  the  common  law,  so  far  as  it  creates  crimes,  is  abolished  by 
statute. 

«  U.  S.  V.  Hudson,  7  Cranch(U.  S.),  32;  1  Bish.  Cr.  Law,  §  194. 
*  U.  S.  V.  Paul,  6  Pet.  (U.  S.)  141. 


Sect.  5.]  GENERAL   PRINCIPLES.  5 

sane  person.^  So  where  a  person  is  indicted  for  entering  with 
intent  to  steal,  or  with  intent  to  commit  a  felony,  if  his  intent 
is  not  to  steal  or  is  to  do  an  act  not  amounting  to  a  felony 
the  indictment  cannot  be  sustained.^  On  the  other  hand,  a 
mere  intent,  no  matter  how  evil,  is  not  punishable :  thus  go- 
ing to  A's  house  with  the  intent  to  beat  him  and  insulting 
him  in  order  to  provoke  a  quarrel  does  not  justify  a  conviction 
for  assault  and  battery  ;3  so  having  counterfeiting  dies  in 
one's  possession,  even  though  with  an  intent  to  counterfeit,  is 
not  punishable  at  common  law,  there  being  no  act  by  the  de- 
fendant;* so  an  intent  to  defraud  the  revenue  where  nothing 
is  actually  done  is  not  punishable  ;  ^  nor  an  intent  to  cheat  by 
false  pretences  if  the  representations  are  in  fact  true  ;^  nor  to 
administer  noxious  drugs  if  the  drug  in  fact  administered  is 
not  noxiousJ  So  a  fortiori,  if  A,  having  agreed  to  engage  in 
a  criminal  act,  withdraw^s  before  the  commission  thereof,  so 
that  at  the  time  he  neither  has  a  criminal  state  of  mind  nor 
performs  a  criminal  act.^ 

These  two  elements  of  act  and  intent  must  coexist.  So,  if 
the  defendant  docs  an  act  in  a  non-criminal  state  of  mind,  a 
later-arising  criminal  intent  cannot  be  referred  back  to  that 
act  so  as  to  make  it  criminal ;  thus  where  an  officer  enters  a 
house  to  serve  a  warrant  and  while  in  the  house  e'ngagcs  in  a 
criminal  act  his  original  entry  does  not  thereby  become  crimi- 

1  Post,  §1  36,  44. 

2  Rex  V.  Knight,  2  East  P.  C.  510,  C.  Ill ;  C.  v.  Newell,  7  Mass.  245, 
C.  109;  S.  V.  Cooper,  16  Vt.  551. 

3  Yoes  y.  S.,  9  Ark.  42,  M.  20. 

4  Hex  V.  Heath,  R.  &  R.  184;  Dugdale  v.  Reg.  1  E.  &  B.  435;  S.  v. 
Penny,  1  Car.  Law  Rep.  517;  contra,  and  overruled.  Rex  v.  Sutton,  2 
Stra.  1074. 

5  U.  S.  V.  Riddle,  5  Cranch,  311. 

6  S.  V.  Asher,  50  Ark.  427,  8  S.  W.  177;  S.  v.  Garris,  98  N.  C.  733,  4 
S.  E.  633.  See  also  :  Croker  w.  S.,  49  Ark.  60,  4  S.  W.  197;  Bruce  v.  S., 
87  Ind.  450;  S.  v.  Cox,  65  ]\Io.  29;  S.  v.  Schaffer,  31  Wash.  305,  71  P. 
1088. 

7  Reg.  V.  Hennah,  13  Cox  C.  C.  547,  C.  111. 

8  Rex.  V.  Richardson,  Leach,  4th  ed.  387 ;  Piukard  v.  S.,  30  Ga.  757, 
M.  335. 


6  CRIMINAL  LAW.  [Sects.  6,  7. 

iial ;  1  so  with  a  guest  who  enters  the  hotel  with  the  consent 
of  the  landlord;^  the  doctrine  of  trespass  ah  initio  has  no 
place  in  the  criminal  law.  So  a  master  cannot,  by  adopting 
the  criminal  act  of  liis  servant,  thereby  make  himself  indictable 
therefor.-^  Similarly,  a  former  intent  and  act,  colorless  in 
themselves,  cannot  be  made  criminal  by  the  occurrence  of  a 
subsequent  event  not  necessarily  connected  therewith  or 
caused  thereby.^  But  if  the  intent  exists  at  the  time  of  the 
criminal  act,  it  is  immaterial  that  it  no  longer  exists  when 
the  results  of  that  act,  which  settle  the  nature  of  the  offence, 
are  finally  determined.  Thus  where  A,  in  a  criminal  state  of 
mind,  stabs  B,  he  is  none  the  less  criminally  responsible  for 
the  latter's  death  if  he  repents  of  his  act  between  the  time  of 
the  blow  and  the  dcath.^  And  it  would  seem  that  if  A,  iustcad 
of  stabbing  B,  had,  with  the  same  intent,  set  in  motion  a  chain 
of  events  that  (without  the  intervention  of  any  criminally  re- 
sponsible third  person)  produced  this  same  result  as  their 
natural  and  proximate  consequence,  a  change  of  intent  after 
the  setting  in  motion  of  the  chain  of  causation  would  be 
immaterial.^ 

THE     CRIMINAL    ACT. 

§  6.  Difference  between  Wrongs  and  Crime.  —  Not  every  act 
which  is  legally  wrong  is  a  crime.  Private  wrongs  are  re- 
dressed by  suits  inter  imrtes.  In  a  criminal  prosecution  tlie 
government  itself  is  a  party  ;  and  the  government  moves  only 
when  the  interest  of  the  public  is  involved.  The  basis  of 
criminality  is  therefore  the  effect  of  the  act  complained  of 
upon  the  public." 

§  7.   Moral  Obliquity  not  Essential.  —  It  follows  from  this 

1  Milton  V.  S.,  40  Fla.  251,  24  So.  60,  M.  334;  C.  v.  Tobin,  lOS  Mass. 
426. 

2  S.  V.  Moore,  12  N.  IT.  42,  M.  91 S. 

3  Morse  v.  S.,  6  Conn.  9.     See  Siho  post,  §  280. 

4  U.  S.  V.  Fox,  95  U.  S.  670. 

5  Compare  Reg.  v.  Sutton,  2  I\Ioo.  C.  C.  29,  M.  335. 

6  Compare  S.  v.  Stentz,  33  Wash.  444,  74  P.  588 ;  1  Bish.  New   Cr  L 
§  207. 

T  Rex.  V.  ^Yheatly,  2  Burr.  1125. 


Sects.  8, 9.]  GENERAL  PRIXCirLES.  7 

that  moral  obliquity  is  not  an  essential  element  of  crime,  except 
so  far  as  it  may  be  involved  in  the  very  fact  of  the  violation  of 
law.  What,  therefore,  is  criminal  in  one  jurisdiction  may  not  be 
criminal  in  another ;  and  what  maybe  criminal  at  a  particular 
period  is  often  found  not  to  have  been  criminal  at  a  different 
period  in  the  same  jurisdiction.  The  general  opinion  of 
society,  finding  expression  through  the  common  law  or  through 
special  statutes,  malvcs  an  act  to  be  criminal  or  not  according 
to  the  view  which  it  takes  of  the  proper  means  of  preserving 
order  and  promoting  justice.  Adultery  is  a  crime  in  some 
jurisdictions ;  while  in  others  it  is  left  witliin  the  domain  of 
morals.  Embezzlement,  which  was  till  within  a  comparatively 
recent  period  a  mere  breach  of  trust,  cognizable  only  by  the 
civil  courts,  has  been  nearly,  if  not  quite,  universally  brought 
by  statute  into  the  category  of  crimes  as  a  modified  larceny. 
The  sale  of  intoxicating  liquors  is  or  is  not  a  crime,  according 
to  the  differing  views  of  public  policy  entertained  by  different 
communities. 

§  8.  Trifling  Offences  not  Indictable.  —  Some  violations  of 
legal  duty  are  said  to  be  so  trifling  in  their  character,  or  of 
such  exclusive  private  interest,  that  the  law  does  not  notice 
them  at  all,  or  leaves  them  to  be  dealt  with  by  the  civil 
tribunals.^ 

§  9.  Three  Classes.  —  Crimes  are  classified  as  treasons, 
felonies,  and  misdemeanors,  the  former  being  regarded  as  the 
higbest  of  crimes,  and  punished  in  the  most  barbarous  man- 
ner, as  it  is  a  direct  attack  upon  the  government,  and  disturbs 
the  foundations  of  society  itself.  It  is  primarily  a  breach  of 
the  allegiance  due  from  the  governed  to  the  government.  It 
is  active  disloyalty  against  the  State  ;  and  because  it  is  against 
the  State,  it  is  sometimes  called  high  treason,  in  contradis- 
tinction to  petit  treason,  which,  under  the  early  English  law, 
was  the  killing  of  a  superior  toward  whom  some  duty  of 
allegiance  is  due  from  an  inferior,  —  as  where  a  servant  killed 
his  master,  or  an  ecclesiastic  his  lord  or  ordinary.  Now, 
however,  this   distinction   is   done  away   with   both   in    this 

1  Rex  V.  Southerton,  6  East,  126;  see  Reg.  v.  Kenrick,  per  Ld. 
Deuman,  5  Q.  B.  62,  in  commenting  upon  Rex  v.  Turner,  13  East,  223. 


8  CRIMINAL  LAW.  [Sect.  10. 

country  and  in  England,  and  such  offences  belong   to   the 
category  of  homicide.^ 

§  10.  Felonies  at  common  law  were  such  crhiies  as  upon 
conviction  involved  the  forfeiture  of  the  convict's  estate.^ 
They  were  also  generally,  but  not  always,  punishable  with 
death.  These  tests  have  long  since  been  abolished  in 
England,  and  what  constitutes  felony  is  now,  to  a  great 
extent,  both  there  and  in  tbis  country,  determined  by  statutory 
regulation.  If  the  statute  either  expressly  ^  or  by  clear  impli- 
cation,* as  by  punishing  accessories,  a  distinction  applicable 
only  to  felonies,^  or  by  using  a  word  that  has  a  settled  common 
law  meaning,  as  robbery,^  fixes  tbe  degree  of  crime,  that  of 
course  is  conclusive.  Whenever  this  is  not  the  case,  the 
courts  look  to  the  history  of  the  particular  offence  under 
consideration,  and  ascertain  whether  it  was  or  was  not  re- 
garded by  the  common  law  as  a  felony.'^  The  more  usual 
statutory  test  in  this  country  is  that  the  offence  is  punishable 
with  death,  or  imprisonment  in  the  state  prison.^  The  term 
is  now  significant  only  as  indicating  the  "degree  or  class" 
of  the  crime  committed.^  What  was  felony  at  common  law, 
unless  the  statute  has  interposed  and  provided  otlierwise,  is 
still  regarded  as  felony  in  all  the  States  of  the  Union,  with 
the  possible  exception  of  Vermont, ^^  without  regard  to  the 
ancient  test  or  to  the  mode  of  punishment. 

1  4  BL  Com.  75,  92. 

2  4  Bl.  Com.  94. 

3  Reagan  v.  U.  S.,  1.57  U.  S.  301 ;  compare  U.  S.  v.  Staats,  8  How.  41. 

4  S.  V.  Mallett,  125  N.  C.  718,  31  S.  E.  651. 

5  C.  i:  Barlow,  4  Mass.  439. 

^  Harrison  v.  U.  S.,  163  U.  S.  140.  See  also  on  the  U.  S.  criminal  law 
U.  S.  V.  Coppersmith,  4  Fed.  198  ;  Considine  v.  U.  S.,  112  Fed.  342;  U.  S. 
V.  Vigil,  7  N.  M.  269,  34  P.  .530. 

'  Drennan  v.  P.,  10  Mich.  169;  S.  v.  Drewer,  65  N.  C.  572;  S.  v. 
Murphy,  17  R.  I.  698,  24  Atl.  473. 

8  1  Bish.  Cr.  Law,  §  618.  And  it  is  none  the  less  a  felony  because  a 
milder  punishment  may  be  imposed ;  1  Bish  Cr.  Law,  §  619,  and  cases. 
See  also:  Mairs  v.  B.  &  O.  R.  R.,  73  App.  Div.  (N.  Y.)  26.5,  76  N.  Y.  S. 
838 ;  S.  V.  Hamilton,  2  O.  C.  D.  6.     Compare  P.  v.  Cornell,  16  Cal.  187. 

9  1  Russ.  on  Crimes,  40. 
10  S.  V.  Scott,  24  Vt.  127. 


Sects.  11-13.]  GENERAL  PRINCIPLES.  9 

§  11.  Misdemeanors  include  all  other  crimes,  of  whatever 
degree  or  character,  not  classed  as  treasons  or  felonies,  and 
however  otherwise  punishable.^  It  is  for  the  most  part 
descriptive  of  a  less  criminal  class  of  acts.  But  there  are 
undoubtedly  some  misdemeanors  which  involve  more  turpitude 
than  some  felonies,  and  may,  for  this  reason,  be  visited  with 
greater  severity  of  punishment,  though  not  of  the  same  kind. 
What  was  not  felony  by  the  common  law,  or  is  not  declared 
to  be  by  statute,  or  does  not  come  within  the  general  statutory 
definitions,  is  but  a  misdemeanor,  though,  in  point  of  crimi- 
nality, it  may  be  of  a  more  aggravated  character  than  other 
acts  which  the  law  has  declared  to  be  felony .^  When  a 
question  arises  whether  a  given  crime  is  a  felony  or  a  misde- 
meanor, and  the  question  is  at  all  doubtful,  the  doubt  ought 
to  be  resolved  in  favor  of  the  lighter  offence  ^  in  conformity 
to  the  rule  of  interpretation  in  criminal  matters,  that  the 
defendant  shall  have  the  benefit  of  a  doubt. 

§  12.  What  Acts  Are  Criminal. —  For  reasons  that  we  have 
already  stated,  it  is  impossible  to  draw  an  exact  line  between 
offences  that  are  criminal  and  those  which  are  mere  civil 
wrongs  ;  nor  is  an  exact  classification  of  all  criminal  acts  pos- 
sible. The  more  important  crimes,  including  felonies,  are 
clearly  defined ;  but  the  lesser  offences  can  neither  be  ex- 
haustively described  nor  even  named.  Only  the  general  prin- 
ciples can  be  stated,  and  it  must  be  left  to  the  court  to  apply 
these  principles  to  the  facts  of  each  particular  case  as  it  arises.* 
Much  of  the  difficulty  is  removed  by  statutes,  which  commonly 
define  such  minor  offences  as  are  likely  to  arise.  Many  of 
the  smaller  common  law  offences  are  comprised  under  the 
crimes  of  nuisance,  malicious  mischief,  and  conspiracy. 

§  13.  Offences  against  the  Government,  —  Offences  of  a  sort 
to  affect  the  public  collectively,  that  is  to  interfere  with  the 
proper  maintenance  of  the  different  departments  of  the  gov- 
ernment,  are   criminal    acts.      Thus   the    embezzlement   of 

^  1  Russ.  on  Crimes,  43. 

2  c.  V.  Newell,  7  Mass.  245. 

3  C.  V.  Barlow,  4  Mass.  439. 

*  C.  c.  Callaghan,  2  Va.  Cas.  460,  C.  6. 


10  CRIMINAL  LAW.  [Sect.  14. 

public  moneys  ^  and  tlie  destruction  of  trees  upon  public 
land  2  are  indictable  offences ;  as  are  the  disturbance  of  a 
town  meeting,^  and  fraudulent  voting  at  a  town  election;* 
so  also  the  stirring  up  of  disaffection  against  the  government,^ 
or  slanderous °  or  libellous"  attacks  upon  its  officers.  Corrup- 
tion in  public  office  is  criminal,  whether  the  office  be  execu- 
tive^ or  judicial ;  ^  and  it  is  equally  a  criminal  act  to  interfere, 
as  by  bribery, ^^  or  subornation  of  perjury ,^^  with  the  execu- 
tion of  the  duties  of  any  department  of  government.  And  an 
indictment  will  lie  for  a  failure  by  a  public  officer  to  dis- 
charge the  duties  devolved  upon  him  by  law.^^ 

§  14.  Offences  against  Public  Security  and  Tranquillity.  —  The 
government  protects  not  only  itself,  but  the  health,  security, 
and  tranquillity  of  the  public  at  large  ;  and  an  act  which  en- 
dangers either  of  these  is  a  criminal  act.  Thus,  knowingly 
exposing  a  small-pox  patient  in  the  public  street,  so  as  to  en- 
danger the  public,^^  driving  a  carriage  through  a  crowded  street 
at  a  dangerous  rate,^*  keeping  explosive  substances  in  a  town, 
so  as  to  create  danger  of  an  explosion,^^  openly  carrying  about 
a  dangerous  weapon,  so  as  to  alarm  the  public,^*^  spreading  false 

^  Resp.  V.  Teischer,  1  Dall.  (Pa.)  335. 

2  C.  y.  Eckert,  2  Browne  (Pa.),  249. 

3  C.  V.  Hoxey,  16  Mass.  385. 

4  C.  V.  Silsbee,  9  Mass.  417  ;    C.  v.  McHale,  97  Pa.  407,  M.  27. 

5  Aiiou.,  3  Mod.  52,  M.  21  ;  C.  v.  Morrisson,  Addison  (Pa.),  274,  M.  22. 

6  Anon.,  Comberbach,  40  ;  Rex.  v.  Darby,  3  Mod.  139,  M.  21. 
T  Reg.  V.  Lovett,  9  C.  &  P.  462 ;  S.  v.  Burnhani,  9  N.  H.  34. 
8  C.  V.  Callaghan,  2  Va.  Cas.  400,  C.  6. 

«  Rex  V.  Williams,  3  Burr.  1317,  M.  23  ;  P.  v.  Coon,  15  Wend.  (X.  Y.) 
277. 

10  Reg.  V.  Bunting,  7  Ont.  524 ;  S.  v.  Ellis,  33  X.  J.  L.  102,  M.  23. 
"  1  Hawk.  P.  C,  c.  69,  §  10. 

12  Gearhart  v.  Dixon,  1  Pa.  St.  224  {semble)  ;  S.  v.  Hall,  97  N.  C.  474, 
1  S.  E.  683. 

13  Rex  V.  Vantandillo,  4  M.  &  S.  73,  M.  53;  Rex  v.  Burnett,  4  M.  &  S. 
272;  Reg.  V.  Henson,  Dears.  21. 

1*  U.  S.  V.  Hart,  1  Pet.  C.  C.  390,  Fed.  Cas.  No.  15,310. 

15  Reg.  V.  Lister,  D.  &  B.  209;  Rex  v.  Taylor,  2  Str.  1107,  ]\L  .52; 
contra,  Kleebaur  v.  Fuse  Co.,  138  Cal.  497,  71  P.  017 :  P.  v.  Sands,  1  Johns. 
(N.  Y.)  78. 

"  Knight's  Case,  3  Mod.  117;  S.  v.  Huntly,  3  Ired.  (N".  C.)  418. 


Sect.  15.]  GENERAL  PRINCIPLES.  11 

reports  that  children  are  being  kidnapped, ^  making  outcries 
on  the  public  street,  in  such  a  way  as  to  annoy  passers,^  ob- 
structing a  navigable  stream ^  or  a  public  highway,^  or  failing 
to  keep  the  same  in  repair,^  displaying  an  e^gy  with  the  in- 
tent of  causing  a  riot,*^  are  all  indictable  acts  J 

§  15.  Offences  against  Religion,  Morality,  and  Decency.  — 
Offences  against  religion,  morality,  and  decency  are  criminal 
if  they  are  committed  publicly,  or  in  such  a  way  as  to  affect 
the  public.  Thus,  disturbing  public  worship  is  a  criminal 
act ;  ^  so  is  blasphemy  or  profane  swearing  in  public.^  Public 
obscenity  in  word  ^"^  or  action  ^^  is  criminal.  But  since  it  is 
only  affronts  to  the  public  sense  of  decency  that  the  criminal 
law  attempts  to  guard  against  and  not  the  injury  to  the  indi- 
vidual as  such,  an  indecent  exposure  to  one  person  is  not  a 
crime  ;  ^^  but  on  the  other  hand,  it  is  not  necessary  that  the  ex- 
posure should  have  been  seen  by  more  than  one  person  if  it 

1  C.  V.  Cassidy,  6  Phila.  82,  M.  54. 

2  C.  V.  Oaks,  113  Mas.s.  8. 

3  Reg.  V.  Randall,  C.  &  M.  400  ;  Resp.  v.  Caldwell,  1  Dall.  (Pa.)  150;  S. 
V.  Church,  1  Pa.  St.  105. 

4  C.  V.  Wilkinson,  16  Pick.  (Mass.)  175 ;  Reading  v.  C,  11  Pa.  St.  196 ; 
Town  of  Mason  v.  O.  R.  R.  C,  51  W.  Va.  183,  41  S.  E.  418. 

5  Waterford  v.  P.,  9  Barb.  (N.  Y.)  161  ;  S.  v.  Murphreesboro,  11 
Humph.  (Tenn.)  217. 

6  C  I'.  Haines,  4  Clark  (Pa.),  17,  M.  41 ;  compare  Beatty  v.  Gilbanks, 
15  Cox  C.  C.  138. 

'  For  other  instances  of  acts  which  are  indictable  as  injuring  the 
public  security  and  tranquillity  see:  Rex  v.  Dixon,  3  M.  &  S.  11; 
Stein  V.  S.,  37  Ala.  123  ;  S.  r.  "^Hart,  34  Me.  36;  C.  v.  Chapin,  5  Pick. 
(Mass.)  192 ;  S.  v.  Williams,  2  Overt.  (Tenn.)  108,  M.  63 ;  jwst,  §§  178- 
183. 

8  S.  V.  Jasper,  4  Dev.  (X.  C.)  323. 

9  Goree  v.  S.,  71  Ala.  7  ;  P.  v.  Ruggles,  8  Johns.  (N.  Y.)  290,  M.  36; 
S.  V.  Powell,  70  N.  C.  67  ,  S.  v.  Brewiugton,  84  N.  C.  783  ;  Young  v. 
S  ,  10  Lea  (Temi.),  165. 

10  S.  V.  Appling,  25  Mo.  315  ;  S.  i-.  Toole,  106  N.  C.  736,  11  S.  E.  168; 
Barker  v.  C,  19  Pa.  412 ;  Bell  v.  S.,  1  Swan  (Tenn.),  42,  M.  59. 

11  Sedley's  Case,  1  Keb.  620;  Reg.  v.  Reed,  12  Cox  C.  C.  1 ;  S.  v.  Rose, 
32  Mo.  560;  Britain  v.  S.,  3  Humph.  (Tenn.)  203. 

1--^  Reg.  V.  AYatson,  2  Cox  C.  C.  376  ;  Reg.  v.  Webb,  2  C.  &  K.  933  ; 
Morris  v.  S.,  109  Ga.  351,  34  S.  E.  577. 


12  CRIMINAL  LAW.  [Sect.  ]6. 

was  SO  publicly  done  that  it  might  well  have  beeii.^  An  in- 
dictment will  lie  for  maintaining  an  indecent  public  exhibi- 
tion,2  or  for  knowingly  leasing  premises  to  be  used  for  immoral 
purposes,^  or  conducting  a  disorderly  house.*  Open  public 
cohabitation  of  a  man  and  woman  without  marriage  is  crim- 
inal,^ though  a  secret  cohabitation  is  not.^  Common  public 
drunkenness  is  indictable,"  and  so,  it  has  been  held,  is  public 
cruelty  to  animals.^  And  casting  a  human  corpse  into  a  river 
is  criminal,  being  an  outrage  on  the  public  feeling  of  decency.^ 
So  the  exhuming  of  a  body  for  purposes  of  dissection.^*^  In 
short,  whatever  tends  to  the  corruption  of  the  public  morals 
is  a  criminal  act ;  ^^  for  the  court,  in  administering  the  criminal 
law,  is  custos  morum  populi^^ 

§  16.  Offences  against  Individuals.  —  The  greatest  difficulty 
arises  in  connection  with  offences  against  the  persons  or 
property  of  individuals.     So  far  as  the  party  injured  is  con- 

1  Keg.  ('.  Thallman,  L.  &  C.  326 ;  S.  v.  Roper,  1  Dev.  &  Batt.  (N.  C) 
208,     Compare  C.  v.  Oaks,  113  Mass.  8. 

2  Reg.  V.  Grey,  4  F.  &  F.  73 ;  Reg.  v.  Saunders,  1  Q.  B.  D.  1.5;  Pike 
V.  C,  2  Duv.  (Ky.)  89;  C.  v.  Sharpless,  2  S.  &  R,  (Pa.)  91. 

3  Smith  V.  S.,  6  Gill  (Md.),  425 ;  C.  v.  Harrington,  3  Pick.  (Mass.)  26. 
1  Rex  V.  Medlor,  2  Show.  36  ;  U.  S.  v.  Dixon,  4  Cranch  C.  C.  107,  Fed. 

Cas.  No  14,970;  accord,  Hall  v.  S.,  4  Ilarr.  (Del.)  132;  S.  v.  Mulliken,  8 
Blackf.  (Tnd.)  260.  Compare  Rex  r.  M'Donald,  3  Burr.  1645;  P.  v. 
Jackson,  3  Den.  (N.  Y.)  101. 

5  Rex  V.  Delaval,  3  Burr.  1434;  S.  v.  Cagle,  2  Humph.  (Tenn.)  414. 

^  Croiise  V.  S.,  16  Ark.  566;  P.  v.  Gates,  46  Cal.  52;  Exparte  Thomas, 
103  Cal.  497,  37  P.  514  ;  Wright  v.  S.,  5  Blackf.  (Ind.)  358  ;  Delany  v.  P., 
10  Mich.  241 ;  S.  v.  Moore,  1  Swan  (Tenn.),  136  ;  S.  v.  Cooper,  16  Vt.  551. 
Compare  S.  v.  Brunson,  2  Bail.  (S.  C.)  149  ;  C.  v.  Isaacs,  5  Rand.  (Va.) 
634  ;  Jones'  Case,  2  Grat.  (Va.)  555;  contra,  S.  v.  Avery,  7  Conn.  266, 
(semble);  Grisham  v.  S.,  2  Yerg.  (Tenn.)  589. 

T  Tipton  V.  S.,  2  Yerg.  (Tenn.)  .542. 

8  U.  S.  V.  Logan,  2  Cr.  C.  C.  (D.  C.)  259,  Fed.  Cas.  No.  15,623; 
U.  S.  V.  Jackson,  4  Cr.  C.  C.  (D.  C.)  483,  Fed.  Cas.  No.  15,453.  See 
Anon.,  7  Dane  Abr.  261. 

9  Kanavan's  Case,  1  Me.  226. 

10  Rex  V.  Lynn,  Leach,  4th  ed.  497.  Compare  Reg.  v.  Price,  L.  R.  12  Q. 
B.  D.  247. 

"  C.  V.  Sharple-ss,  2  S.  &  R.  (Pa.)  91. 

12  Rex  V.  Delaval,  3  Burr.  1434.     See  also  S.  v.  Dowers,  45  N.  H.  543. 


Sect.  17.]  GENERAL  PRINCIPLES.  13 

cerned,  his  wrong  is  righted  by  a  civil  action.  The  public  is 
not  called  upon  to  interfere,  so  long  as  an  injury  is  private  ; 
nor  can  a  plaintiff  be  allowed  to  turn  a  declaration  into  an 
indictment.!  The  question  to  be  settled  in  all  cases  of  the 
sort,  therefore,  is  this :  Has  the  public  security  been  endan- 
gered by  the  offence  ?  In  all  cases  where  the  public  peace 
has  been  endangered  there  is  clearly  a  criminal  offence ;  and 
this  principle  covers  all  cases  of  violence  to  the  person.  It 
covers  also  all  cases  where  the  personal  safety  of  an  indi- 
vidual is  threatened ;  for  the  public  is  bound  to  protect  the 
personal  safety  of  its  individual  members.  So  an  act,  though 
it  fall  short  of  personal  violence,  is  criminal  if  its  natural 
effect  is  to  cause  serious  personal  injury.  Infecting  drinking- 
water  by  throwing  the  carcass  of  an  animal  into  a  well  is 
criminal  for  this  reason  ;  2  as  is  putting  cow-itch  on  a  towel 
in  order  to  communicate  the  disease  to  a  person  using  the 
towel.^  Entering  a  house  at  night  and  disturbing  the  inmates 
so  that  a  woman  therein  was  made  ill  has  been  held  indict- 
able.* It  was  also  held  a  criminal  act  to  come  into  the  porch 
of  a  house  where  only  women  were,  and  shoot  dogs  lying  in 
the  yard,  so  as  to  cause  great  fright  to  the  womcn.^  And 
where  the  defendant  was  shooting  wild  fowl  near  a  house, 
and  a  girl  in  the  house  was  thrown  into  fits  at  the  sound  of  a 
gun,  but  the  defendant,  though  warned  of  this  fact,  wantonly 
discharged  the  gun  and  injured  the  girl,  he  was  held  guilty  of 
a  criminal  act.^ 

§  17.  Offences  against  Property.  —  The  public  is  not,  generally 
speaking,  concerned  with  transactions  between  individuals, 
or  interested  in  protecting  private  property  from  spoliation. 
Forcible  acts  of  depredation  are  violations  of  the  public 
peace ;  therefore  forcible  entry  on  land,  and  robbery  of  chat- 
tels, are  criminal.     It  is  also  the  duty  of  the  public  to  protect 

1  Rex  r.  Osborn,  3  Burr.  1697. 

2  s.  i,.  Buckman,  8  N.  H.  203. 

8  P.  V.  Blake,  1  Wheel.  (X.  Y.)  490. 

4  C.  V.  Taylor,  5  Binn.  (Pa.)  277. 

5  Henderson  v.  C,  8  Grat.  (Va.)  708. 

6  C.  V.  Wing,  9  Pick.  (Mass.)  1. 


14  CRIMINAL  LAW.  [Sect.  18. 

individuals  when  they  cannot  protect  themselves,  as  during 
sleep.  In  the  performance  of  this  duty,  the  criminal  law  for- 
bids breach  of  a  man's  dwelling  in  the  night-time,  or  burning  it 
at  any  time,  and  the  taking  of  his  chattels  from  his  possession 
against  his  will ;  these  acts  constituting  the  crime  of  bur- 
glary, arson,  and  larceny.  But  where  a  man  is  in  condition  to 
protect  himself,  he  is  not  generally  afforded  the  additional 
protection  of  the  criminal  law.  Accordingly,  cheating  is  not 
generally  criminal,  but  it  becomes  so  if  accomplished  by 
means  of  false  weights,  measures,  or  tokens,  against  which  a 
man  cannot  protect  himself,  or  by  a  corrupt  combination  of 
two  or  more  persons,  by  which  the  most  careful  man  might 
be  deceived. 1  For  a  similar  reason,  it  is  not  criminal  at  com- 
mon law  to  convert  to  one's  own  use  goods  of  another,  of 
which  one  has  the  possession  ;  for  it  is  merely  a  breach  of 
the  trust  imposed  by  the  owner,  who  has  thus  liad  an  opportu- 
nity to  protect  himself.  These  acts  have,  however,  been 
made  criminal  by  statutes,  and  now  constitute  respectively 
the  crimes  of  obtaining  by  false  pretences,  and  embezzlement. 

Real  property  is  at  common  law  accorded  even  less  pro- 
tection by  the  public  than  chattels  ;  probably  because  the 
danger  of  depredation  is  less,  and  the  public  interest  is  there- 
fore involved  to  a  less  degree.  No  trespass  on  real  property 
wdiich  falls  short  of  forcible  entry  is  criminal.^  Many  injuries 
to  real  property  have  been  made  criminal  by  statute. 

§  18.    Attempts. — An  attempt  is  an  act  done  in  part  ex- 

1  Rex  V.  Wheatly,  2  Burr.  1125, 1  W.  Bl.  273;  C.  v.  Warren,  6  Mass.  72. 
The  reason  for  the  distinction  is  perhaps  rather  in  the  fact  that  the 
cheating  by  means  of  a  false  token  is  an  act  more  directly  affecting  the 
public  since  it  may  be  used  against  all  its  members  indifferently.  A  cheat- 
ing by  a  forged  letter  directed  to  a  single  individual  may  be  as  effective  in 
deceiving  him  as  would  be  a  false  weight,  yet  it  would  not  be  punishable 
as  a  cheating  by  false  tokens  :  P.  v.  Stone,  9  Wend.  (X.  Y.)  182;  Middle- 
ton  V.  S.,  Dudley  (S.  C),  275,  M.  57.  Compare  Resp.  v.  Powell,  1  Dall. 
(Pa.)  47,  M.  56 ;  and  ante,  §  13. 

2  Rex  V.  Storr,  3  Burr.  1698 ;  Rex  v.  Atkins,  3  Burr.  1706  ;  Brown's 
Case,  3  Me.  177;  S.  v.  Burroughs,  7  N.  J.  L.  426;  Kilpatrick  v.  P.,  5 
Denio  (N.  Y.),  277 ;  C.  v.  Edwards,  1  Ashm.  (Pa.)  46 ;  C.  c.  PoweU,  8 
Leigh  (Va.),  719. 


Sects.  19, 20.]  GENERAL  PRINCIPLES.  15 

edition  of  a  design  to  commit  a  crime.'^  There  must  be  an 
intent  that  a  crime  shall  be  committed,  and  an  act  done,  not 
in  full  execution,  but  in  pursuance,  of  the  intent.^  An  attempt 
to  commit  a  crime,  whether  common  law  or  statutory,  is  in 
itself  a  crime, — usually  a  misdemeanor,  unless  expressly 
made  a  felony  by  statute.^  But  if  the  act,  when  accom- 
plished, would  be  a  violation  of  neither  statute  nor  common 
law,  —  as,  for  instance,  the  procuring  an  abortion  with  the 
consent  of  the  mother,  she  not  being  then  quick  with  child,  — 
the  attempt  is  no  crime.* 

§  19.  Solicitations  and  Misprisions.  —  A  solicitation  to  com- 
mit a  crime  is  not  an  attempt,  being  a  mere  act  of  preparation  ; 
and  a  solicitation  to  commit  a  small  crime  is  not  regarded  as 
of  enough  public  importance  to  be  punished  as  a  crime.^  But 
solicitation  to  commit  a  felony  or  other  aggravated  crime  is 
a  criminal  act ;  ^  and  for  this  purpose  any  act  which  tends 
to  a  breach  of  the  peace,  or  a  corruption  of  public  justice  or 
duty,  is  a  sufficiently  aggravated  crimeJ 

Misprision  of  felony,  that  is,  the  concealment  of  the  com- 
mission of  a  felony,  is  a  criminal  act.^  A  similar  neglect  to 
prevent  or  disclose  the  commission  of  a  treason  is  misprision 
of  treason.^  All  misprisions  are  misdemeanors,  and  a  mis- 
prision of  a  misdemeanor  is  too  trifling  an  offence  for  the 
criminal  law  to  take  cognizance  of. 

§  20.  Failure  of  the  Criminal  Act.  —  It  is  evident  that,  how- 
ever criminal  the  intent  of  a  party,  if  his  act  failed  to  become 
a  criminal  one,  he  cannot  be  convicted  of  crime.     Thus,  if 

1  Smith  V.  C,  .54  Pa.  209. 

2  Rex  r.  Wheatly,  2  Burr.  1125,  1  B.  &  H.  Lead.  Cr.  Cas.  1,  and  note. 
8  Reg.  V.  Meredith,  8  C.  &  P.  589 ;  Rex  v.  Roderick,  7  C.  &.  P.  795  ; 

Smith  V.  C,  ante. 

*  C.  V.  Parker,  9  Met.  (Mass.)  263;  S.  v.  Cooper,  2  Zab.  (N.  J.)  52. 
Seepo!<t,  §§  183-185. 

6  Cox  V.  P.,  82  111.  191 ;  Smith  v.  C,  ante. 

^  Rex  V.  Higgins,  2  East,  5 ;  C.  v.  Flagg,  135  Mass.  545 ;  C.  v.  Ran- 
dolph, 146  Pa.  83,  33  Atl.  388. 

T  Whart.  Cr.  Law,  §  179 ;  Walsh  v.  P.,  65  111.  58. 

8  1  Hawkins  P.  C,  ch.  vii. 

9  Hale  P.  C.  484 ;  1  East  P.  C.  139. 


16  CRIMINAL  LAW.  [Sects.  21,  22. 

one  takes  his  own  watch  animo  furandi,  thinking  it  to  be 
another's,  he  cannot  be  convicted  of  larceny.  And  where 
A.  obtained  property  by  the  conveyance  of  land,  which  he 
represented  as  unencumbered,  though  he  believed  there  was 
an  encumbrance  on  it,  yet  if  the  encumbrance  was  invalid  he 
is  not  guilty  of  obtaining  by  false  pretences.^ 

§  21 .  Effect  of  Individual  Action.  —  In  certain  classes  of  crim- 
inal acts,  —  offences,  namely,  against  the  persons  or  property 
of  individuals,  —  the  injury  is  done  primarily  to  the  individ- 
ual ;  and  the  act  is  a  criminal  one  only  because  it  is  for  the 
public  interest  to  protect  individuals  against  such  offences. 
In  crimes  of  this  kind  the  consent  of  the  individual  injured 
becomes  a  factor  in  determining  the  criminality  of  the  de- 
fendant's act,  not  because  the  individual  can  authorize  the 
defendant  to  commit  a  crime,  but  because,  if  the  act  is  one 
that  is  criminal  only  if  done  without  tlie  consent  of  the  individ- 
ual, as  battery,  which  is  unpermitted  bodily  contact,  or  larceny, 
which  is  taking  of  property  without  the  consent  of  the  owner, 
the  existence  of  the  consent  takes  away  one  of  the  elements 
necessary  to  make  out  the  crime. 

§  22.  Effect  of  Acquiescence  for  Detection.  —  It  is  necessary, 
however,  to  distinguish  between  a  consent  by  the  individual 
that  a  certain  thing  might  be  done  to  him  or  his  property, 
which,  if  it  had  been  done  without  his  consent,  would  have 
been  criminal,  and  mere  knowledge  by  him  that  a  wrong  doer 
intended  to  commit  such  an  act.  In  the  latter  case  where  the 
injured  individual  afforded  an  opportunity  for  the  commission 
of  a  criminal  act  for  the  sake  of  detecting  the  criminal,  the 
acquiescence  of  the  individual,  such  as  it  is,  does  not  prevent 
the  act  from  being  punishable.^  Thus,  where  a  thief  proposed 
to  A's  servant  to  steal  A's  property,  and  the  servant,  having 
informed  A,  was  ordered  to  proceed  in  the  act  proposed,  and 
thereupon  the  act  was  committed  and  the  thief  apprehended 

1  S.  V.  Asher,  50  Ark.  427,  8  S.  W.  177. 

2  Reg.  V.  Williams,  1  C.  &  K.  195;  P.  v.  Hanselraan,  76  Cal.  460,  18 
P.  425;  O'Halloran  v.  S.,  31  Ga.  206;  S.  v.  Anone,  2  N.  &  McC.  (S.  C) 
27 ;  Alexander  v.  S.,  12  Tex.  540. 


Sect.  22.]  GENERAL  PRINCIPLES.  17 

upon  the  spot,  he  was  held  to  be  guilty  of  larceny .^  So  where 
A  proposed  to  sell  liquor  to  B's  slaves,  contrary  to  the 
statute,  knowledge  thereof  and  acquiescence  therein  by  B 
constituted  no  defence  ;2  so  with  putting  an  obstruction  on 
a  railroad  track,  acquiesced  in  by  the  company  for  tlie  purpose 
of  detecting  the  criminal.^  And  so  long  as  the  injured  person 
gives  no  consent  to  the  act  proposed,  the  fact  that  he  hopes 
that  the  criminal  may  make  the  attempt  in  order  that  he  may 
be  caught  does  not  lessen  the  criminality  of  the  act.  Nor  is 
it  the  less  a  crime  because  the  person  to  be  robbed  makes  full 
preparation  therefor,  and  has  officers  or  detectives  stationed 
to  ap})rehend  the  criminals.*  But  it  must  be  plain  that  the 
act  was  in  no  sense  induced  by  the  injured  party ;  for  if  he 
was  active  in  the  commission  of  the  offence,  it  is  his  own  act, 
and  no  injury  to  him.  If  the  individual  is  not  harmed,  there 
is  no  public  injury.^ 

The  distinction  is  brought  out  clearly  in  two  cases  stated  in 
Foster's  Crown  Law.  In  the  first  case,  one  procured  himself 
to  be  robbed  by  strangers,  that  he  might  apprehend  them  and 
gain  the  reward  ;  and  this  was  held  no  crime. ^  In  the  sec- 
ond, one  went  out  on  the  highway  and  put  himself  in  the 
way  of  being  robbed,  with  the  intention  of  capturing  the 
highwayman ;  and  here  the  robbery  was  held  to  be  a  crime.^ 
And  this  distinction  is  the  same  whether  the  procuring  of  the 
act  and  consequent  consent  thereto  is  done  personally,  or  by 
those  who  represent  the  owner  of  the  property.     Thus  where 

1  Rex  V.  Eggington,  2  East  P.  C.  49 1,  666,  2  B.  &  P.  508,  C.  326, 
K.  260;  Varuer  v.  S.,  72  Ga.  745;  Thompson  v.  S.,  18  lud.  386;  S.  v. 
Snefe,  22  Neb.  481,  35  N.  W.  219  ;  S.  v.  Covington,  2  Bailey  (S.  C),  569, 
M.  77;  McAdams  v.  S.,  76  Tenn.  456;  Robinson  v.  S.,  31  Tex.  Cr.  R. 
71,  29  S.  W.  40. 

2  O'Halloran  i'.  S.,  31  Ga.  206. 

3  Dalton  V.  S.,  113  Ga.  1037,  39  S.  E.  468, 

*  S.  V.  Stickney,  53  Kan.  308,  36  P.  714;  Johnson  v.  S.,  3  Tex.  App. 
590;  P.  I'.  Morton,  4  Utah,  407,  11  P.  512. 

5  Rex  V.  Eggington,  2  East  P.  C.  666,  C.  326,  K.  260  ;  S.  r.  Douglass, 
44  Kan.  618;  P.  v.  McCord,  76  Mich.  200,  42  N.  W.  1106  ;  S.  v.  Adams, 
115  N.  C.  775,  20  S.  E.  722. 

6  McUaniel's  Case,  Fost.  C.  L.  121,  K.  259. 

7  Norden's  Case,  Fost.  C  L.  129. 

2 


18  CRIMINAL  LAW.  [Sect.  22a. 

A  employs  a  detective  to  discover  a  wrong  doer  and  the  de- 
tective with  the  consent  of  A  urges  the  person  suspected  to 
steal  again  in  order  to  get  a  conviction,  the  consent  of  the 
ovvner  through  his  agent  will  prevent  the  act  done  from  being 
a  crime. 1  The  same  principle  of  course  applies  where  the 
physical  act  of  taking  is  done  by  the  detective.^ 

A  somewhat  common  case  is  where  the  servant  of  the  per- 
son whose  house  it  is  designed  to  enter  is  approached,  and,  by 
advice  of  the  master,  consents  to  assist  the  burglars,  his  pur- 
pose being  to  secure  their  arrest  and  conviction.  If  in  such 
a  case  the  servant  himself  opens  tlie  door  for  the  thieves,  the 
latter  cannot  be  held  guilty  of  burglary  ;  at  most  their  offence 
is  larceny.'^ 

§  22a.  Acts  Induced  by  Third  Persons.  —  It  is  clear  that  the 
criminality  of  crimes  of  the  kind  discussed  in  the  last  section 
can  be  taken  away  only  by  the  consent  of  a  person  injured  or 
those  wlio  represent  him.  Hence  where  a  third  person  in- 
duces tlie  defendant  to  rob  for  the  purpose  of  apprehending 
him  in  his  crime,  no  consent  by  him,  express  or  implied,  can 
excuse  the  defendant.*  A  fortiori  is  this  the  case  where  the 
act  is  criminal  because  it  directly  injures  the  public  at  large 
or  the  government.  Thus,  in  an  indictment  for  sending  ob- 
scene matter  through  the  mails,  it  is  no  defence  that  it  was 
sent  in  answer  to  a  request  so  to  do  made  to  the  defendant  by 
a  post-oftice  inspector,  who  did  it  for  the  purpose  of  getting 
evidence  to  convict  him.^  If,  however,  the  act  is  criminal 
only  when  done  in  a  certain  way,  as  liquor  selling  without  the 

1  Connor  v.  P.,  18  Col.  373,  33  P.  UQ;  S.  v.  AVaghalter,  177  Mo.  676, 
76  S.  W.  1028;    Spieden  w.  S.,  3  Tex.  App.  156,  M.  80;  McGee  v.  S., 
Tex.        ,  66  S.  W.  562. 

2  P.  V.  Collins,  53  Cal.  185;  Williams  v.  S.,  55  Ga.  391 ;  Love  v.  P.,  160 
111.  501,  13  N.  E.  710. 

3  Rex  V.  Eggington,  2  East  P.  C.  666,  C.  326,  K.  260 ;  S.  v.  Jausen,  22 
Kan.  498;  S.  v.  Hayes,  105  Mo.  76,  16  S.  W.  514. 

4  S.  V.  Abley,  109  la.  61,  80  N.  W.  225,  U.  83  ;  P.  v.  Liphardt,  105 
Mich.  80,  62  N.  W.  1022.  The  person  so  instigating  may  himself  be 
also  criminally  liable:  Slaughter  v.  S.,  113  Ga.  284,  38  S.  E.  854. 

5  Price  V.  U.  S.,  165  U.  S.  311 ;  Rosen  v.  U.  S.,  161  U.  S.  29  ;  U.  S. 
V.  Wight,  38  Fed.  106 ;  U.  S.  v.  Dorsey,  40  Fed.  752 ;  contra,  U.  S.  v. 
Adams,  59  Fed.  074. 


Sect.  23.]  GENERAL   PRINCIPLES.  19 

license  of  the  municipality,  the  effect  of  consent  given  indi- 
rectly by  the  solicitation  of  a  detective  employed  by  the  city, 
would  be  sufficient  to  render  the  act  non-criminal.^  But 
here,  too,  the  distinction  between  solicitation  and  acquiescence 
for  detection  must  be  kept  in  mind/^ 

§  23.  Effect  of  Consent.  —  Consent  on  the  part  of  the  indi- 
vidual to  the  act  complained  of  will  generally  prevent  the  act 
from  being  a  crime,  provided  the  consent  is  not  exceeded.  If, 
however,  the  act  exceeds  the  consent,  the  defendant  is  clearly 
liable.  Thus  in  cases  of  assault  and  battery,  if  consent  is 
given  to  one  act  and  the  defendant  does  another,  or  if  the 
act  consented  to  is  done  maliciously  and  with  a  degree  of  force 
exceeding  that  consented  to,  the  crime  is  completed.^ 

There  are,  moreover,  certain  cases  where  the  law  forbids, 
or  rather  makes  void,  consent ;  and  in  such  cases  the  consent 
will  not  avail  the  offender.  A  young  girl,  for  instance,  cannot 
give  a  valid  consent  to  carnal  connection.*  The  age  at  which 
she  becomes  capable  of  consenting  is  generally  fixed  by 
statute. 

If  the  consent  is  to  an  act  which  may  cause  serious  bodily 
harm,  it  is  clearly  void ;  ^  for  such  harm  is  of  itself  a  public 
injury.  Thus  in  an  indictment  for  mayhem  ^  or  homicide  ^ 
the  consent  of  the  injured  party  is  no  defence.  On  the  other 
liand,  innocent,  manly  sports  arc  to  be  encouraged,  and  injury 
which  results  in  the  course  of  such  sports,  fairly  and  honestly 
carried  on,  cannot  be  the  basis  of  a  criminal  prosecution. 
But  sports  which  are  likely  to  cause  serious  injury  or  breach 
of  the  peace  are  not  regarded  as  lawful ;  and  where  a  criminal 

1  Wilcox  V.  P.,  17  Col.  App.  109,  G7  P.  343  ;  P.  v.  Braisted,  13  Col. 
App.  .532,  58  P.  796;  Evanston  v.  Myers,  172  111.  266,  50  N.  E.  20i,  M.  88 ; 
Blaikie  v.  Linton,  18  Scot.  Law  Rep.  583. 

2  Evanston  v.  Myers,  a7ite. 

8  Reg.  V.  Sinclair,  13  Cox  C.  C.  28  ;  Reg.  v.  Bennett,  4  F.  &  F.  1105; 
Reg.  V.  Clarence,  16  Cox  C.  C.  511,  M.  514 ;  S.  v.  Richie,  58  Ind.  S-^S. 

*  P.  V.  Gordon,  70  Cal.  467,  11  P.  762;  and  see  cases  under  Assault 
with  Intent. 

5  Reg.  i:  Bradshaw,  14  Cox  C.  C.  83,  K.  131. 

8  Wright's  Case,  Co.  Litt.  127  a. 

"^  Rex  V.  Sawyer,  1  Russ.  Cr.  &  Mis.,  5th  ed.  645. 


20  CRIMINAL  LAW.  [Sect.  23a. 

prosecution  is  founded  upon  an  injury  inflicted  in  the  course 
of  such  sports,  the  consent  of  the  injured  party  is  no  defence.^ 

§  23a.  Condonation.  —  While,  as  pointed  out  above,*-^  the 
consent  of  the  individual  may,  under  certain  circumstances, 
prevent  the  act  done  from  being  a  crime,  if  the  defendant  once 
does  an  act  that  the  law  forbids,  a  later  condonation  by  the 
individual  injured  can  have  no  effect  on  the  criminal  liability 
of  the  wrong  doer.  In  the  criminal  prosecution  the  public  is 
concerned,  and  not  the  injured  individual;  consequently,  if 
the  elements  of  crime  are  present,  the  public  cannot  be  affected 
by  any  act  of  the  individual.  Thus,  no  forgiveness  by  the 
injured  party ,^  or  restitution  by  the  offender,  can  affect  the 
public  right  to  punish  the  offence  ;^  nor  can  any  act  of  the  in- 
jured individual  before  the  offence  is  consummated  prevent  a 
conviction,  provided  the  elements  of  crime  are  present. 

The  statutory  offence  of  seduction  under  promise  of  mar- 
riage illustrates  this  distinction.  By  the  weight  of  decision 
the  gravamen  of  the  offence  is  the  breach  of  the  promise  to 
marry  when  accompanied  by  seduction :  on  this  view,  if  the 
parties  marry  after  the  seduction,  the  defendant  is  not  crim- 
inally liable,  because  one  of  the  elements  of  the  crime  is  lack- 
ing.^ On  the  other  hand,  the  statute  has  been  construed  as 
being  aimed  against  seduction  accomplished  under  such  a 
promise ;  on  this  view  the  crime  is  completed  when  the  seduc- 
tion takes  place  and  subsequent  marriage  is  no  defence.^ 

1  Foster's  C.  L.  (od  ed.)  259  ;  Reg.  v.  Bradshaw,  ante;  Reg.  v.  Coney, 
8  Q  B.  D.  .534,  M.  70;  C.  v.  Collberg,  119  Mass.  350,  C.  160;  S.  v.  Un- 
derwood, 57  Mo.  40;  S.  v.  Buniham,  56  Vt.  445. 

2  §§  21,  23. 

8  C.  V.  Slattery,  147  Mass.  423. 18  N.  E.  399;  S.  v.  Hammond,  77  Mo.  157. 

4  Thus  in  embezzlement :  Fleener  v.  S.,  .58  Ark.  98,  23  S.  W.  1  ; 
Thalheira  v.  S.,  38  Fla.  169,  20  So.  938;  S.  v.  Frisch,  45  La.  Ann.  1283,  14 
So.  132;  Truslow  v.  S.,  95  Tenn.  189,  31  S.  W.  987;  false  pretences: 
Williams  v.  S.,  105  Ga.  606,  31  S.  E.  .546,  M.  100;  forgery:  S.  v.  Tiill, 
119  I\Io.  421,  24  S.  W.  1010;  Countee  c.  S.,  Tex.  ,  33  S.  W.  127. 
See  also  C.  v.  Kennedy,  160  Mass.  312,  35  N.  E.  1131. 

6  S.  V.  Otis,  135  Ind.  267,  31  N.  E.  954;  P.  i'.  Gould,  70  Mich.  210, 
38  N.  W.  232  ;  C.  v.  Eichar,  4  Pa.  Law  J.  326.  Compare  S.  u.  Ilorton, 
100  N.  C.  44.3,  6  S.  E  238. 

6  He  Lewis,  67  Kan.  562,  73  P.  77.     Compare  P.  v.  Hough,  120  Cal. 


Sects.  23i,  23c.]  GENERAL  PRINCIPLES.  21 

§  236.  Condonation  by  Public  Officers.  —  A  somewhat  similar 
question  arises  where  the  prosecuting  attorney  or  other  officer 
of  the  State  attempts  to  release  a  defendant  from  his  criminal 
responsibility  if  lie  will  give  evidence  against  his  co-defendants 
or  confederates.  Here  too  tlie  attempted  condonation  cannot 
excuse  the  crime ;  it  is  still  the  same  and  the  State  still  has 
the  right  to  punish  therefor.  If,  however,  the  defendant 
faithfully  performs  his  side  of  the  agreement  and  the  pro- 
ceeding takes  place  with  the  approval  of  the  judge  before 
whom  the  matter  is  pending,  this  is  recognized  as  giving  him 
a  moral  right  to  consideration  by  the  State,^  and  he  is  given 
time  to  apply  for  a  pardon,  or  a  nol.  pros,  is  entered,  or  other 
similar  steps  taken.^  In  some  jurisdictions  such  agreement 
may,  by  statute,  be  set  up  as  a  plea  in  bar.^ 

§  23<?.  Compounding  Crimes —  Not  only  can  the  condonation 
by  the  individual  injured  have  no  effect  upon  the  wrong  doer's 
criminal  liability,  as  has  been  already  pointed  out,  but  if  the 
former  enters  into  an  agreement  with  the  wrong  doer  not  to 
prosecute,  he  thereby  commits  -a  separate  criminal  offence, 
viz.  compounding.^  The  offence  compounded  must  have  been 
itself  a  crime  ;  otherwise  it  is  simply  a  settlement  of  private 
claims.^     The  gist  of  the  offence  lies  in  the  agreement  not  to 

538,  52  P.  846;  S.  v.  Bierce,  27  Conn.  319;  S.  v.  Wise,  32  Or.-280,  50  P. 
800. 

1  Pvex  ;;.  Rudd,  Cowp.  331;  C.  r.  St.  John,  173  Mass.  566,  54  N.  E. 
254,  M.  105;  Whitney  v.  S.,  53  Neb.  287,  73  N.  W.  696;  S.  v.  Graham, 
41  N.  J.  L.  15  ;  S.  v.  Lyon,  81  N.  C.  600;  U.  S.  v.  Ford,  99  U.  S.  594. 
See  S.  V.  Bain,  112  Ind.  335,  14  N.  E.  232. 

2  For  the  various  methods  of  procedure  see  1  Bish.  New  Cr.  Pr., 
§§  1164-1168. 

a  P.  V.  Peter,  48  Cal.  2.50 ;  Young  v.  S.,     Tex.,     75  S.  W.  23. 

*  A  particular  form  of  compounding  which  consists  in  receiving  back 
stolen  goods  under  an  agreement  not  to  prosecute  was  called  thef  bote  in 
the  older  law,  and  the  person  so  taking  back  his  goods  was  punished  as 
an  accessory  after  the  fact  to  the  robbery.  It  is  now  regarded  as  a 
separate  misdemeanor  :  4  Bl.  Com.  133  ;  and  see  S.  i;.  Vidalla,  24  R.  I. 
186,  52  Atl.  889. 

5  Treadwell  v.  Torbert,  122  Ala.  297,  25  So.  216 ;  Woodham  v.  Allen, 
130  Cal.  194,  62  P.  398  ;  Keith  v.  Buck,  16  111.  App.  121 ;  S.  v.  Leeds,  68 
N.  J.  L.  210,  52  Atl.  288;  S.   r.  Hanson,  69  N.   J.  L.  42,  54  Atl.  841; 


22  CRIMINAL  LAW.  [Sect.  -24. 

prosecute,  and  once  tlie  agreement  has  thus  been  made  the 
crime  is  completed ;  ^  hence  it  is  no  defence  that  the  com- 
pounder later  instituted  criminal  proceedings  against  tlic 
original  wrong  doer.^  On  the  other  hand,  if  the  injured  per- 
son merely  accepts  restitution  from  the  wrong  doer,  but 
makes  no  agreement  as  to  criminal  proceedings,  there  is  no 
compounding.^ 

Since  the  criminality  of  the  act  lies  in  the  fact  that  it  is 
done  for  the  purpose  of  settling  by  individual  action  a  matter  in 
which  the  State  is  the  party  primarily  interested,  it  follows 
that  the  offence  is  none  the  less  committed,  whether  the  crime 
compounded  be  a  treason,  or  a  felony,*  or  a  misdemeanor  such 
as  disturbing  public  worship,^  or  a  riot,^  or  illegal  liquor  sell- 
ing.' Wliere,  however,  the  crime  is  at  most  a  slight  one,  and 
where,  in  addition  to  that,  the  criminality  of  it  lies  principally 
in  the  injury  to  some  individual,  tlie  law  will  allow  the  party 
thus  directly  injured  to  settle  the  matter  by  agreement.  Thus 
a  charge  of  obtaining  money  by  false  pretences,^  or  of  assault 
and  battery,^  or  of  fornication,-^*^  may  be  thus  settled.  In 
many  States  statutes  have  been  passed  defining  this  right.^i 

§  24.  Effect  of  Contributory  Negligence.  —  Though  the  neg- 
ligence of  the  injured  party  contributed  to  the  injury,  the 
defendant  is  none  the  less  punishable  ;  for  the  injury  was 

Swope  V.  Ins.  Co.,  93  Pa.  251 ;  Heckman  v.  Swartz,  50  Wis.  267,  6  N.  W. 
891;  contra,  Fribly  v.  S.,  42  O.  St,  205. 

^  Reg.  I'.  Burgess,  15  Cox  C.  C.  779;  S.  v.  Duhammel,  2  Harr.  (Del.) 
532. 

2  S.  V.  Ash,  33  Or.  86,  51  P.  184;  contra,  Rex  v.  Stone,  4  C.  &.  P. 
379. 

8  Beeley  v.  Wingfield,  11  East,  46;  Powell  v.  Flanary,  22  Ky.  Law. 
Rep.  908,  59  S.  W.  5  ;   Catlin  v.  Henton,  9  Wis.  476. 

4  S.  V.  Riithven,  58  la.  121,  12  N.  W.  235;  C.  v.  Pease,  16  Mass.  91. 

^  Edgecombe  v.  Rodd,  5  East,  294. 

6  Keir  o.  Leeraan,  6  Q.  B.  N.  S.  308. 

'  S.  I,'.  Carver,  69  K  H.  216,  39  Atl.  973. 

8  Johnson  v.  Ogilby,  3  P.  Williams,  278;  Geier  y.  Shade,  109  Pa.  ISO; 
Rothermal  v.  Hughes,  134  Pa.  510,  19  Atl.  677. 

^  Keir  v.  Leeman,  supra. 

10  Rohrheimer  v.  Winters,  126  Pa.  253,  17  Atl.  606,  M.  103. 
"  See  P.  V.  Dalrymple,  55  Mich.  519,  22  N.  W.  20,  M.  102. 


Sect.  24.]  GENERAL  PRINCIPLES.  23 

nevertheless  caused  by  his  criminal  act ;  ^  thus  where  the  de- 
ceased, who  was  deaf,  negligently  walked  in  the  middle  of  the 
road  on  a  dark  night,  and  the  defendant  acting  in  a  criminally 
negligent  manner  ran  him  down  ;2  so  where  the  defendant 
overloaded  his  boat  in  a  criminally  negligent  way  and  being 
so  overloaded  it  was  upset  by  the  carelessness  of  a  passenger 
who  was  drowned.^  So  the  fact  that  the  person  killed  was  so 
weakened  by  his  own  dissipation  that  he  died  from  a  blow 
that  would  not  have  killed  a  reasonably  well  man  is  no  de- 
fence.* On  the  same  principle  it  has  been  held  to  be  no  defence 
that  a  second  wound  also  contributed  to  bring  about  the  death. 
That  fact  would  merely  render  the  person  inflicting  it  also 
liable ;  ^  and  it  would  be  the  same  even  though  the  second 
wound  was  inflicted  by  the  deceased  himself.^  So  where  the 
negligence  of  several  combine  to  bring  about  the  fatal  result.'^ 
On  the  other  hand,  the  mere  fact  that  the  defendant's  blow 
might  have  caused  the  death  of  the  deceased  cannot  render 
him  criminally  liable  for  it  if  in  fact  death  came  from  in- 
dependent causes,  as  where  A  inflicts  on  X  a  wound  of  mortal 
nature  and  B,  either  contemporaneously^  or  later,^  kills  him 
outright;  the  actual  death  is  due  solely  to  B.  So  where  the 
negligence  of  the  injured  party  might  fairly  be  regarded  as  the 
sole  active  cause  of  the  injury,  the  defendant  is  to  be  acquitted, 
because  he  has  not  in  fact  done  the  act  charged  ;  ^^  but  such 
negligence  is  not  properly  described  as  contributory. 

1  Reg.  V.  Kew,  12  Cox  C.  C.  3.5.5,  C.  150,  K.  135  (but  see  Reg.  v. 
Birchall,  4  F.  &  F.  1087,  C.  119) ;  Balk  v.  P.,  125  111.  584,  17  N.  E.  744 ; 
Crum  V.  S.,  64  :\Iiss.  1,  1  So.  1. 

2  Reg.  V.  Swiudall,  2  C.  &  K.  230;  Reg.  v.  Longbottom,  3  Cox  C.  C. 
439,  ]\L  94 ;  Belk  v.  P.,  ante ;  contra,  Reg.  v.  Birchall,  ante. 

3  Reg.  V.  Williamson,  1  Cox  C.  C,  97,  M.  91. 

4  P.  V.  Moan,  65  Cal.  532,  4  P.  545  ;  S.  v.  Castello,  62  la.  404,  17  N.  W. 
605.    Compare  Rex  v.  Johnson,  1  Lewin  C.  C.  164. 

5  S.  V.  Tidwell,  70  Ala.  33;  P.  v.  Ah  Fat,  48  Cal.  61. 
«  P.  V.  Lewis,  124  Cal.  551,  57  P.  470,  M.  569. 

'  Reg.  V.  Haines,  2  C.  &  K.  368. 

8  Walker  r.  S.,  116  Ga.  537,  42  S.  E.  787. 

9  S.  V.  Scates,  5  Jones  (X.  C),  420. 

10  Rex  V.  AVaters,  6  C  &  P.  328,  M.  90  ;  Reg.  v.  Dalloway,  2  Cox  C.  C. 
273;  Belki;.  P.,  125  111.  584, 17  N.  E.  744;  Crum  v.  S.,  64  Miss.  1, 1  So.  1. 


24  CRIMINAL  LAW.  [Sect.  25. 

For  the  same  reason,  negligence  by  the  injured  party  in 
caring  for  a  wound  will  not  make  the  offender  the  less  charge- 
able with  the  ultimate  effect  of  the  wound,i  nor  will  refusal  by 
the  injured  party  to  submit  to  an  operation  that  would  have 
saved  his  life,^  and  improper  treatment  of  the  wound  by  the 
surgeon  is  equally  unavailing  to  purge  the  offender's  guilt.^ 

§''25.  Effect  of  Guilty  Participation  by  the  Injured  Party.  — 
The  fact  that  the  injured  party  was  injured  while  himself 
eno-aged  in  an  illegal  act  against  the  defendant  does  not  lessen 
the  criminality  of  the  offence;  for  the  public  wrong  is  equally 
great,  though  the  individual  may  have  suffered  no  more  than 
he  deserved.  Thus,  where  the  injured  party  was  cheated 
while  himself  endeavoring  to  cheat  the  defendant,  the  latter  is 
guilty.^  Where  a  servant  absconds  with  money  given  him  for 
the  master  for  an  illegal  purpose,  he  is  nevertheless  guilty  of 
embezzlement.^  And  where  the  defendant  gave  a  girl  a  coun- 
terfeit coin,  knowing  it  to  be  counterfeit,  as  a  consideration 
for  illicit  intercourse,  he  was  held  guilty  of  uttering  the  coin.^ 
So  where  the  injured  party  is  cheated  while  endeavoring  to 
buy  counterfeit  money ,^  or  to  obtain  government  land  to  which 
he  has  no  right,^  or  to  defraud  a  third  person  out  of  claims 
against  him.^     But  if  the  indictment  is  attempted  to  be  based 

1  Rex  V.  Rew,  Kel.  26,  IM.  559  ;  McAllister  v.  S.,  17  Ala.  434;  Kee  v.  S., 
28  Ark.  155;  S.  v.  Bantley,  44  Conn.  537. 

2  Reg.  V.  Holland,  2  Moo.  &  Rob.  351;  Franklin  v.  S.,  41  Tex.  Cr.  R. 
21,  51  S.  W.  951. 

8  Reg.  V.  Davis,  15  Cox  C  C.  174;  Thomas  v.  S.,  139  Ala.  80,  36  So. 
734  ;  C.  V.  Hackett,  2  All.  (Mass.)  136,  C.  168;  S.  v.  Landgraf,  95  Mo. 
97,  8  S.  AV.  237;  C.  v.  Eisenhower,  181  Pa.  470,  37  Atl.  521.  See  also 
post,  §  230. 

4  Reg.  V.  Hudson,  8  Cox  C.  C.  305,  C.  142;  C.  v.  Morrill,  8  Cush. 
(Mass.)  571,  C.  146.  See,  however,  contra,  McCord  v.  P.,  46  N.  Y.  470, 
C.  148;  S.  V.  Crowley,  41  Wis.  271. 

5  Rex.  V.  Beacall,  1  C.  &  P.  454. 

6  Queen  v. ,  1  Cox  C.  C.  250,  C.  145. 

'  Crum  V.  S.,  148  Ind.  401,  47  N.  E.  833. 

8  Re  Cummins,  16  Col.  451,  27  P.  887. 

9  P.  V.  INLartin,  102  Cal.  558,  36  P.  952,  M.  98.  See  also  Rex  i'.  Mott, 
2  C.  &  P.  521 ;  Gilniore  v.  P.,  87  111.  App.  128 ;  C.  v.  O'Brien,  172  Mass. 
248,  52  N.  E.  77;  Cunningham  v.  S.,  61  N.  J.  L.  67,  38  Atl.  847. 


Sect.  2G.]  GENERAL  PRINCIPLES.  25 

on  what  the  law  does  not  recognize,  as,  for  instance,  depriving 
one  of  an  office  that  never  existed,  it  is,  for  this  reason, 
defective.^ 

THE   CKIMINAL    INTENT. 

§  26.  Motive  Immaterial.  —  Like  immorality  of  act,  im- 
morality of  purpose  is  not  an  element  of  crime.  The  motive 
with  which  an  act  was  done  is  immaterial  in  deciding  the 
question  of  its  criminality  :  a  crime  may  be  committed  with  a 
good  motive,  while  an  act  done  from  a  sinful  motive  is  not 
necessarily  criminal.  Motive  may,  it  is  true,  sometimes  be 
shown  in  evidence ;  but  it  is  merely  as  evidence  of  intent. 

Motive  must  not  be  confounded  with  intent.  The  intent 
applies  to  and  qualifies  the  act.  Motive  is  that  which  leads 
to  the  act.  And  while  it  is  essential  in  common  law  crimes 
that  the  intent  to  commit  the  crime  should  appear,  either 
expressly  or  by  implication,  no  such  necessity  exists  as  to 
motive,  and  it  need  not  be  proved.^ 

If,  therefore,  the  intent  to  violate  the  law  exists,  the  motive, 
as  has  been  said,  is  immaterial.  For  example,  it  is  an  indict- 
able offence  at  common  law  to  enter,  without  the  consent  of 
the  owner,  an  unconsecrated  burial-ground,  and  dig  up  and 
carry  away  a  corpse  buried  there,  though  it  be  done  openly, 
decently,  and  properly  by  a  relative,  and  from  a  sense  of  filial 
duty  and  religious  obligation.^  Nor  will  it  be  any  justification 
for  a  person  who  intentionally  does  an  act  which  the  law  pro- 
hibits, —  voting,  for  instance,  —  that  he  conscientiously  be- 
lieved he  had  a  right  to  vote,  notwithstanding  the  statute;* 
so  fishing  where  the  law  forbids,^  or  issuing  passes,*^  or  selling 

^  Rex  V.  Stratton,  1  Camp.  549. 

2  Baalam  v.  S.,  17  Ala.  451;  C.  v.  Hudson,  97  Mass.  565 ;  P.  v.  Robin- 
son, 1  Park  (N.  Y.),  C.  R.  649;  S.  v.  Coleman,  20  S.  C.  441,  M.  139. 

3  Reg.  V.  Sharpe,  7  Cox  C.  C.  214;  S.  v.  McLean,  121  N.  C.  589,  28 
S.  E.  140;  Phillips  v.  S.,  29  Tex.  226. 

*  U.  S.  V.  Anthony,  11  Blatch.  C.  Ct.  200,  Fed.  Cas.  No.  14,459,  2  Green's 
Or.  Law  Rep.  208,  and  note. 

5  S.  V.  Huff,  89  Me.  521,  36  Atl.  1000. 

«  S.  V.  So.  lly.  Co.,  122  N.  C.  1052,  30  S.  E.  133. 


26  CRIMINAL  LAW.  [Skct.  27. 

liquor  ^  or  lottery  tickets,^  or  carrying  weapons.^  Nor  is  it  a 
defence  that  the  act  would  be  harmless  ;*  nor  that  it  would  be 
for  the  public  benefit.^  Nor  can  polygamy ^  or  obscenity"  be 
excused  on  the  ground  that  the  offender  acted  from  the  high- 
est motives  of  religion  or  morality.  And  one  is  guilty  of 
crime  who  refuses  to  obey  a  statutory  duty  to  call  in  medical 
aid  for  a  child,  though  he  thought  it  irreligious  to  call  in  such 
aid.^  Nor  is  it  of  avail  that  the  real  purpose  is  other  than  to 
violate  the  law,  the  natural  result  of  the  act  being  to  violate 
the  law ;  as  where  one  assaults  an  officer  in  the  discharge  of 
his  duty,  the 'purpose  not  being  to  hinder  the  officer  in  the 
discharge  of  his  duty,  but  to  inflict  upon  him  personal  chastise- 
ment, on  account  of  some  private  grief.  If  the  act  results  in 
the  obstruction  of  the  officer  in  tlie  discharge  of  his  duty,  the 
offender  is  guilty  of  the  latter  offence.^  So  where  logs  are 
left  in  a  stream,  thereby  impeding  navigation,  although  the 
only  purpose  was  to  store  them  there  for  business  reasons.^*' 

§  27.  General  Criminal  Intent  Presumed  from  the  Unlawful  Act. 
—  Aside  from  cases  of  negligence  ^^  it  is  ordinarily  necessary, 
in  order  to  render  a  man  criminally  responsible,  that  there 
should  be  a  voluntary  act  by  him  that  the  law  of  crimes  for- 
bids. This  is  often  expressed  in  the  proposition  that  when  a 
man  does  an  act  that  the  law  thus  forbids,  the  law  will  pre- 
sume the  existence  of  a  criminal  intent  and  so  punish  him. 

1  Marmont  v.  S.,  48  Ind.  21 ;  Pisar  v.  S.,  56  Neb.  455,  76  N.  W.  869; 
S.  V.  Presnell,  12  Ire.  (X.  C.)  103  ;  S.  r.  Voight,  90  N.  C.  741. 
^  C.v.  Bull,  76  Ky.  656. 

3  Hardy  v.  S.,  Tex.  44  S.  W.  173.  See  also  Hood  v.  S.,  56  Ind. 
263;  S.  V.  Zichfield,  23  Nev.  304,  46  P.  80-2. 

4  U.  S.  V.  Bott,  11  Blatch.  C.  Ct.  346,  Fed.  Cas.  No.  14,626,  2  Green's 
Cr.  Law  Rep.  239;  P.  v.  O'Brien,  96  Cal.  171,  31  P.  45. 

5  Resp.  V.  Caldwell,  1  Dall.  (Pa.)  150;  C.  v.  Belding,  13  Met.  (Mass.) 
10. 

«  Reynolds  v.  U.  S.,  98  U.  S.  145,  C  95,  K.  31. 

^  Reg   V.  Hicklin,  L.  R.  3  Q.  B.  360 ;  U.  S.  v.  Harmon,  45  Fed.  414. 

8  Reg.  V.  Downes,  13  Cox  C.  C.  Ill;  Reg.  v.  Senior,  19  Cox  C  C. 
219,  M.  143. 

9  U.  S.  V.  Keen,  5  Mason  C.  Ct.  453,  Fed.  Cas.  No.  15,511. 
w  S.  V.  Corporation,  111  N.  C.  661,  16  S.  E.  331. 

"  See  post,  §§  29  et  seq. 


Sect.  27.]  GENERAL  PRINCIPLES.  27 

111  the  light  of  the  preceding  section,  and  bearing  in  mind 
th.e  distinction  between  motive  and  intent  it  is  clear  that  this 
proposition  is  only  a  succinct  statement  of  the  truth  that  if  a 
man  voluntarily  does  an  act  he  necessarily  has  the  intent  to 
do  it.  When  one  does  an  unlawful  act,  he  is  by  the  law  also 
presumed  to  have  intended  the  ordinary  and  natural  conse- 
quences flowing  from  that  act,  on  the  ground  that  these  must 
have  been  within  his  contemplation,  if  he  is  a  sane  man,  and 
acts  with  the  deliberation  which  ought  to  govern  men  in  the 
conduct  of  their  affairs.^  He  is  none  the  less  responsible  for 
the  natural  consequences  of  his  criminal  act  because,  from 
ignorance,  or  carelessness,  or  neglect,  precautionary  measures 
are  not  taken  to  prevent  those  consequences.''^  In  some  cases 
of  statutory  crimes,  as  we  shall  see,  this  presumption  is  con- 
clusive as  to  the  intended  consequences,  and  cannot  be  met  by 
coimter  proof.  As  a  general  rule,  however,  in  those  cases 
where  an  act  in  itself  not  criminal  becomes  so  only  if  done 
■with  a  particular  intent,  there  the  intent  must  be  proved  by 
the  prosecution ;  while  in  those  cases  where  the  act  is  in  itself 
criminal  the  law  implies  a  criminal  intent,  and  leaves  it  open 
to  the  defendant  to  excuse  or  justify.^  But  the  unlawfulness 
of  the  act  is  a  sufficient  ground  upon  which  to  raise  the  pre- 
sumption of  criminal  intent.*  It  is,  of  course,  always  open  to 
proof  that  there  was  no  intention  to  do  any  act  at  all,  whether 
lawful  or  unlawful ;  as  that  the  person  charged  was  insane,  or 
was  compelled  to  the  act  against  his  will,  or  was  too  young  to 
be  capable  of  entertaining  a  criminal  intent.  So,  at  least  when 
the  act  is  criminal  in  its  nature  and  not  peremptorily  prohibited 

1  Rex  V.  Dixon,  3  M.  &  S.  11,  M.  137;  Mullens  v.  S.,  82  Ala.  42,2  So. 
481 ;  C.  V.  Webster,  5  Cush.  (Mass.)  305  ;  C.  r.  Randall,  4  Gray  (Mass.), 
36  ;  P.  V.  Kirby,  2  Park  Cr.  R.  (N.  Y.)  28,  M.  142;  S.  v.  King,  86  N.  C.  G03  ; 
U.  S.  V.  Taintor,  11  Blatch.  C.  Ct.  374,  Fed.  Cas.  Xo.  16,428,  2  Green's 
Cr.  Law  Rep.  241,  and  note. 

2  Reg.  V.  Holland,  2  M.  &  Rob.  351,  K.  93;  Rex  v.  Reading,  1  Keb.  17  ; 
S.  V.  Bantlev,  44  Conn.  537  ;  C.  v.  Hackett,  2  Allen  (Ma.ss.),  136,  C.  168. 

8  Rex  0.  Woodfall,  5  Burr.  2667  ;  S.  v.  Goodenow,  65  Me.  30  ;  3  Greenl. 
Ev.,  §  13. 

*  C.  V.  Randall,  4  Gray  (IMass.),  36;  U.  S.  v.  Taintor,  ante,  and  cases 
cited,  ante. 


28  CRIMINAL  LAW.  [Sect.  28. 

by  the  statute,  it  may  be  shown  tliat  it  was  done  through  mis- 
take ;  as  where  one  drives  off  the  sheep  of  another,  wliich  are 
in  his  own  flock  without  his  knowledge,^  or,  intending  to  shoot 
a  burglar,  by  mistake  shoots  one  of  his  own  family .^ 

§  28.  Constructive  Intent.  —  The  criminal  intent  need  not 
be  an  intent  to  commit  the  exact  offence  actually  complained 
of.  A  defendant  may  have  intended  to  do  one  criminal  act, 
and  may  in  fact  have  done  another ;  for  instance,  intending 
to  inflict  severe  bodily  harm,  he  may  have  killed  the  person 
he  intended  only  to  injure.  In  such  a  case  both  the  elements 
of  a  crime  are  present ;  the  act  which  is  criminal  has  been 
done  with  a  wicked  and  criminal  intent;  the  public  has  been 
wronged,  and  the  offender  is  a  fit  subject  for  punishment. 
Yet  it  would  be  too  severe  a  rule  to  punish  him  in  every  case 
of  the  sort,  however  unexpected  the  result  of  his  act. 

If  the  offender  intended  a  mere  civil  wrong,  an  act  which 
was  not  criminal,  and  without  any  negligence  on  his  part  a 
result  happened  which  is  in  the  nature  of  a  criminal  act,  it  is 
clearly  not  a  crime,  but  an  accident,^  And  so  if  the  intention 
was  merely  to  do  a  malum  proliibitum,  —  to  break  a  police 
regulation,  such  as  an  ordinance  against  fast  driving, —  and 
an  unexpected  result  happened  entirely  without  negligence, 
the  offender  should  not  be  held  a  criminal  because  of  the  re- 
sult, the  reason  being  that  there  is  no  criminal  intent  to 
carry  over  to  the  injury  actually  resulting.  For  this  reason 
it  has  been  said  that  the  distinction  is  not  so  much  between 
mala  in  se  and  mala  prohibita,  as  between  offences  which  re- 
quire a  criminal  intent  and  those  which  do  not.  If  in  the 
course  of  committing  an  act  of  the  first  kind,  even  though  it 
be  a  malum  prohibitum,  an  unexpected  criminal  result  follows, 
it  would  seem  that  the  defendant  would  be  liable  therefor. 
Thus  where  a  statute  punished  the  keeping  of  liquor  withcut 
a  license,  and  also  punished  the  keeping  of  adulterated  liquor, 
the  defendant  intending  to  keep  liquor  against  the  statute  was 
held   punishable  for  the  fact  that  it  was,  unknown  to  him, 

1  1  Hale  P.  C.  507. 

2  Ibid.,  42. 

8  Reg.  V.  Franklin,  15  Cox  C.  C.  163,  C  105,  K.  118,  M.  158. 


Sect.  28.]  GENERAL  PRINCIPLES.  29 

adulterated,  the  intent  required  by  the  statute  being  carried 
over  from  the  act  intended  to  what  was  actually  done.^ 

The  ojffence  he  intended  to  do  must  at  least  be  one  which  in 
itself  was  sinful.^  Whether  a  sinful  or  immoral  intent  alone 
would  be  sufficient  does  not  seem  clear.  Strictly  speaking, 
there  is  no  criminal  intent  to  carry  over  to  the  unexpected  result, 
and  it  would  seem,  therefore,  that  the  mental  element  neces- 
sary to  make  the  crime  could  not  be  found.  Yet  there  are 
cases  holding  that  where  the  defendant  attempts  to  do  an  act 
of  a  sort  that  the  law  forbids  but  not  strictly  within  its  terms, 
if  in  fact  the  result  is  an  act  within  the  terms  of  the  statute, 
he  will  be  held  responsible  therefor,  although  his  intent  was 
not  technically  criminal.  Thus  where  the  statute  forbids  the 
taking  of  a  girl  under  sixteen  from  the  custody  of  her  guard- 
ian without  his  consent,  and  A  does  so,  believing  the  girl  to 
be  over  sixteen,  if  she  was  in  fact  under,  he  is  punishable.^ 

If  the  offender  intended  a  crime  of  violence,  and  in  the 
course  of  it  committed  another  crime  of  the  same  sort,  natu- 
rally growing  out  of  it,  he  is  responsible  for  the  crime  he 
committed.  Thus,  where  one  attempted  suicide,  and  accideut- 
ally  killed  a  man  who  attempted  to  prevent  the  suicidal  act, 
he  is  guilty  of  homicide.*  So  where  A  makes  an  assault  on 
B,  and  in  the  course  thereof  accidentally  injures  C,he  may  be 
indicted  for  an  assault  on  the  latter,^  or  if  the  result  is  to 
strike  out  an  eye,  for  a  mayhem.^  So  where  A  sets  fire  to  a 
dwelling  house,  and  persons  are  thereby  accidentally  burned 
to  death,  he  is  guilty  of  homicide."     So  where  one  inteuded  to 

1  S.  V.  Stanton,  37  Conn.  421,  M.  161. 

2  Reg.  V.  Bruce,  2  Cox  C.  C  262,  K.  136 ;  C.  v.  Adams,  114  Mass.  323, 
M.  160 ;  Estell  v.  S.,  51  N.  J.  L.  182,  17  AtL  118. 

3  Reg.  V.  Prince,  L.  R.  2  C.  C.  154,  K.  21,  M.  173;  P.  v.  Fowler,  88 
Cal.  136,  25  P.  1110;  S.  v.  Ruhl,  8  la.  447;  Riley  v.  S.,  Miss.  , 
18  So.  117.  So  as  to  rape  on  a  girl  under  the  age  of  consent:  P.  v.  Ratz, 
115  Cal.  132,  46  P.  915.  Compare  Rex.  v.  Pedley,  Cald.  218;  and  see 
post,  §  56. 

4  C.  V.  Mink,  123  Mass.  422,  C.  104,  K.  110. 

5  Rex.  V.  IJunt,  1  Moo.  93,  M.  152. 

6  Anon.,  Y.  B.  13  H.  VII,  14,  pi.  5,  K.  20. 

7  Reg.  V.  Serne,  16  Cox  C.  C.  311,  C.  188,  M.  600;  Reddick  v.  C, 
17  Ky.  L.  R.  1020,  33  S.  W.  416. 


30  CRIMINAL  LAW.  [Sect.  28. 

commit  robbery,  but  in  the  course  of  it  killed  the  victim,  he  is 
guilty  of  homicide.^  And  where  the  result,  though  not  in- 
tended, follows  naturally  from  the  criminal  act  that  was 
intended,  it  is  immaterial  that  the  crime  intended  was  of  a  less 
heinous  degree  than  the  result  actually  produced  ;  in  other 
words  the  criminal  intent  need  not  be  of  the  same  degree  as 
tlio  ultimate  criminal  result.  Thus,  where  the  defendant 
attempted  to  commit  an  assault  on  a  slave  and  in  the  course 
thereof  killed  a  free  man,  he  was  held  for  the  death  of  the 
latter  ;  2  so  where  he  intended  to  kill  a  negro  and  in  fact  killed 
a  white,  the  two  offences  being  differently  punished.^  It  has 
even  been  held  that  one  committing  an  act  of  violence  is  crim- 
inally responsible  for  all  consequences,  however  unexpected. 
So  where  one  assaulted  a  woman  with  intent  to  commit  rape, 
and  she,  to  ransom  her  honor,  without  demand  gave  him 
money,  this  was  held  to  be  robbery.*  So  where  the  defendant 
struck  at  B  and  the  blow  frightened  a  child  into  convulsions 
from  which  it  died,  the  jury  were  instructed  that  if  the  death 
was  caused  by  the  defendant's  act  he  was  guilty  of  man- 
slaughter.^ And  there  is  no  doubt  that  if  one  intended  homi- 
cide he  is  guilty  of  murder,  though  he  intended  to  kill  A  and 
actually  killed  B.^ 

It  would  seem  that,  even  if  the  result  was  unexpected,  the 
defendant  is  guilty,  if  his  intention  was  to  commit  a  felony  or 
other  serious  crime. 

But  the  result,  whether  unexpected  or  otherwise,  must  be 
caused  by  the  defendant's  criminal  act;  if  the  latter  is  so  far 
back  in  the  chain  of  causation  as  not  to  be  at  least  a  partial 
effective  cause,  the  defendant  is  not  responsible.  Thus  where 
A  in  violation  of  the  statute  kept  fireworks,  and  while  they 
were  so  kept  they  were  negligently  exploded  by  his  servants, 

1  S.  V.  Barrett,  40  Minn.  77,  41  N.  W.  463;  S.  v.  Pike,  49  N.  H.  399. 

2  Bob  V.  S.,  29  Ala.  20. 

3  Isham  V.  S.,  38  Ala.  213,  M.  148.  See  also  Reg.  v.  Forbes,  10  Cox 
C.  C.  3(52. 

*  Rex  V.  Blackham,  2  East  P.  C.  711. 

5  Reg.  V.  Towers,  12  Cox  C.  C.  530,  C.  163,  K.  95. 

6  Saunder's  Case,  2  Plowd.  473,  C.  176,  K.  81 ;  Gore's  Case,  9  Co.  81  a, 
C.  182,  M.  557;  Wynn  v.  S.,  63  Miss.  200. 


Sects.  29, 30.]  GENERAL  PRINCIPLES.  31 

thereby  killing  a  third  person,  A  ^Yas  held  not  responsible  for 
the  death. 1 

§  29.  Accident.  Negligence.  —  Where  an  act  happens 
through  mere  accident,  there  is  necessarily  an  absence  of 
criminal  intent ;  and  a  mere  accident,  tlierefore,  can  never  be 
a  crime.  But  if  the  accident  was  caused  by  a  breach  of  duty 
on  the  part  of  the  accused,  that  breach  of  duty  may  have  been 
so  culpable  as  properly  to  be  called  criminal.  Such  a  thing 
is  not  a  mere  nonfeasance ;  failure  to  do  one's  duty  may  often 
be  regarded  as  a  deliberate  act,  and  if  not  deliberate  it  may 
at  least  be  treated  as  voluntary,  so  as  to  be  charged  as  com- 
mitted with  a  criminal  intent.  A  breach  of  duty  so  culpable 
as  to  be  either  deliberate  or  voluntary  is  called  criminal  negli- 
gence ;  and  is  a  sufficient  criminal  Intent  to  make  an  act  a 
crime. 

§  30.  Negligence  when  Criminal.  —  It  has  been  said  tliat,  in 
order  to  give  rise  to  a  criminal  prosecution,  the  duty  infringed 
must  have  been  a  public  duty  ;  by  which  is  meant  a  duty  im- 
posed by  law.  Thus,  it  is  said,  the  duty  of  a  parent  to  support 
his  child,  or  of  a  watchman  at  a  railwa}''  crossing,  who  was 
required  to  be  so  placed  by  statute,  would  be  of  such  a  nature 
that  the  infringement  of  it  would  be  criminal ;  but  not  so  the 
negligence  of  a  watchman  at  a  railway  crossing  who  was  placed 
there,  not  in  consequence  of  a  statute,  but  by  private  liberality .^ 
This  position,  however,  appears  not  to  be  sound. 

It  is  clear  that  if  A  owes  a  duty  directly  to  B  and  by  a 
criminally  negligent  failure  to  comply  with  that  duty  he 
injures  B,  he  should  be  punishable  therefor.  This  covers 
all  cases  of  so-called  negligent  acts  of  commission :  thus  A, 
simply  as  a  member  of  the  community  owes  B,  any  other 
member,  the  duty  of  not  shooting  him,  or  dropping  timbers 
upon  him,  or  driving  over  him,  and  if  A  negligently  fail  in  that 
duty,  i.e.,  negligently  shoots  B,  or  drops  timbers  on  him,  or 
drives  over  him,  and  that  negligence  is  sufficiently  gross  for 
the  criminal   law  to  take  cognizance   thereof,  he  is  clearly 

1  Pteg.  V.  Bennett,  Bell.  1,  M.  567,  K.  9S ;  Potter  v.  S.,  162  Ind.  213, 
70  N.  E.  129 ;  see  also  P.  v.  Rockwell,  39  Mich.  503. 

2  Reg.  V.  Smith,  11  Cox  C.  C.  210,  C.  116. 


32  CRIMINAL  LAW.  [Sect.  30. 

punishable  for  the  result  of  his  negligent  act.i  The  same 
principle  will  hold  good  where  A  owes  B  the  duty,  not  of 
refraining,  but  of  doing  ;  —  a  duty  which  may  arise  either  by 
contract  or  by  operation  of  law.  Tims  the  Imsband  owes  the 
wife  the  duty  of  providing  shelter  for  her,^  the  parent  owes 
the  infant  child  a  similar  duty ,3  so  the  master  and  the  ap- 
prentice.^ Under  these  or  similar  conditions,^  where  the 
duty  of  acting  exists,  criminal  negligence,  resulting  in  an 
injury  that  the  law  punishes,  will  make  the  defendant  re- 
sponsible for  that  injury. 

It  would  seem,  however,  that  responsibility  for  acts  of 
criminal  negligence  cannot  be  limited  to  the  above  cases. 
Any  duty  which  one  undertakes  ought  so  to  be  performed  as 
not  to  injure  the  public ;  and  culpable  negligence  in  the  per- 
formance of  any  duty,  if  its  result  is  in  nature  criminal,  ought 
to  be  punished.  Thus,  where  a  workman  in  a  mine  is  charged 
with  the  duty  of  putting  a  stage  over  the  mouth  of  the  shaft, 
and  the  omission  so  to  do  causes  the  death  of  a  human 
being,  he  is  guilty  of  homicide.^  So  where  a  person  charged 
with  the  duty  of  hoisting  persons  from  a  mine  leaves  the 
engine  in  charge  of  a  boy  known  to  be  incompetent,^  or  a 
railroad  employee  neglects  to  flag  a  train,^  or  put  on  brakes  ^ 
or  turn  a  switch,i*^  and  such  negligence  is  so  gross  as  to  be 

1  Reg.  V.  Salmon,  14  Cox  C.  C.  494;  Hull's  Case,  Kel.  40,  M.  215; 
Rigmaidon's  Case,  1  Lewiu  C  C.  180,  K.  122,  M.  217 ;  Knight's  Case,  1 
Lewin  C.  C.  168,  K.  130,  M.  217;  Reg.  v.  Kew,  \%  Cox  C.  C.  355,  K. 
135;  Reg.  v.  Dant,  10  Cox  C.  C.  102,  K.  126;  Rex  v.  Sullivan,  7  C  &  P. 
641,  K.  116;  Fenton's  Case,  1  Lewin  C.  C.  179,  K.  117,  M.  563;  P.  v. 
Pearne,  118  Cal.  154,  50  P.  376;  C.  v.  McLaughlin,  5  All.  (Mass.)  507; 
S.  V.  Barnard,  88  N.  C  661 ;  Lee  v.  S.,  1  Cold.  (Tenn.)  62. 

2  Terr.  v.  Manton,  7  Mont.  162,  14  P.  637. 

8  Reg.  V.  Conde,  10  Cox  C.  C.  547;  Reg.  v.  Handley,  13  Cox  C.  C.  79; 
S.  V.  Behm,  72  la.  533,  34  N.  W.  319;  Gibson  v.  C,  106  Ky.  360,  50  S. 
W.  532. 

4  Rex  V.  Self,  1  East  P.  C.  226 ;  Reg.  v.  Smith,  8  C.  &  P.  153. 

5  Rex  V.  riuggins,  2  Str.  882,  M.  559;  Reg.  v.  Edwards,  8  C.  &  P.  61L 

6  Reg.  V.  Hughes,  7  Cox  C.  C.  301,  C.  114. 
"  Reg.  V.  Lowe,  3  C.  &  K.  123. 

«  Rex  V.  Pargeter,  3  Cox  C.  C.  191. 

9  Reg.  V.  Elliott,  16  Cox  C.  C.  710. 

10  S.  i;.  O'Brien,  32  N.  J.  L.  169,  M.  218. 


Sect.  30.]  GEXEBAL  PKIXCIPLES.  33 

criminal,  he  is  responsible  for  the  injuries  resulting  therefrom. 
Although  his  primary  duty  is  the  contractual  one  toward  his 
employer,  by  the  very  fact  of  undertaking  that  he  owes  a  duty 
toward  all  those  whom  his  contract  requires  him  to  serve  or 
act  for.i 

Where  A,  the  defendant,  originally  owed  no  duty  to  B, 
either  directly  or  by  contract  with  a  third  person,  it  would 
seem  that  nevertheless,  if  A  so  acts  toward  B  that  the  latter 
is  induced  to  rely  on  the  defendant  and  so  put  himself  in  such 
a  position  that  a  failure  by  the  defendant  to  continue  the 
action  thus  begun  will  result  in  injuries  that  if  intentionally 
inflicted  would  render  the  defendant  criminally  responsible, 
the  defendant  is  punishable  if,  as  a  result  of  his  negligence, 
those  injuries  do  in  fact  occur.  It  is  enough  if  the  person 
injured  had  reason  in  fact  to  rely  on  the  defendant's  care, 
whether  he  had  a  legal  right  so  to  rely  or  not.  So  where  one 
choQses  to  take  care  of  a  child  of  tender  years,  though  bound 
neither  by  law  nor  by  contract  so  to  do,  he  is  guilty  of  crime 
if  his  culpable  negligence  cause  injury  to  the  child.'-^  So 
where  the  defendant  voluntarily  undertakes  the  care  of  an 
aged  and  helpless  woman  and  then  neglects  to  provide  for 
her.^ 

The  responsibility  in  all  these  cases  is  predicated  upon  a 
failure  by  the  defendant  to  perform  a  legal  duty  to  the  party 
injured ;  consequently,  where  there  is  no  duty,  a  failure  to 
act  on  the  part  of  the  defendant,  even  though  by  acting  the 
injury  to  the  third  party  could  have  been  avoided,  can  create 
no  legal  liability.  Thus,  where  a  mother  refuses  to  get  a 
midwife  for  her  daughter,  the  daughter  being  of  age  and  with 
no  contractual  claim  against  her  mother,  and  the  latter  not 
having  undertaken  to  see  the  daughter  through  her  trouble, 

1  For  other  cases  of  criminal  responsibility  \>  hen  the  duty  is  primarily 
a  contractual  one  with  third  persons  see  Reg.  v.  Haines,  2  C.  &  K.  368 ; 
Reg.  r.  Benge,  4  F.  &  F.  504 ;  Rex  v.  Pitwood,  19  T.  L.  R.  37  ;  contra, 
Reg.  V.  Barrett,  2  C.  &  K.  343. 

'^  Reg.  ('.  Bubb,  4  Cox  C.  C  455  ;  Reg  v.  Martin,  11  Cox  C.  C.  136 
(sembJe)  ■  Reg.  v.  NichoUs,  13  Cox  C.  C.  75;  Lewis  v.  S.,  72  Ga.  164. 

8  Reg.  (..^Marriott,  8  C.  &  P.  425,  M.  229  ;  Reg.  v.  Instan  [1893],  1  Q. 
B.  450  r  contra,  Rex.  v.  Smith,  2  C.  &  P.  449. 

3 


34  CRIMINAL  LAW.  [Sect.  31. 

she  is  not  criminally  responsible  for  the  death  of  the  daughter 
although  due  to  such  failure.^ 

On  the  other  hand,  the  fact  that  the  defendant  owed  a  duty 
to  the  injured  person  which  he  neglected  to  perform  will  not 
render  him  punishable  unless  that  neglect  was  the  cause  of 
the  injury.  Thus  where  a  master,  with  criminal  negligence, 
fails  to  supply  proper  food  for  his  servant,  if  the  latter  can 
get  it  by  other  means,  and  refuses  to  do  so,  it  is  not  the 
negligence  of  the  master  but  his  own  stubbornness  that  causes 
his''death;2  and  so  where  the  captain  of  a  yessel  neghgently 
fails  to  pick  up  a  sailor  who  has  fallen  overboard,  if  it  appears 
that  the  sailor  must  have  sunk  before  any  boat  could  reach 
him,  his  death  cannot  be  said  to  be  due  to  the  captain's 
negligence.''^ 

§  31.  What  Negligence  Is  Culpable. — Not  every  degree  of 
neolio-ence  is  sufficient  for  conviction  of  crime.  It  must  be 
culpable  negligence  ;  such  as  may  fairly  be  described  as  gross, 
wanton,  or  wicked.*  A  mere  error  of  judgment  in  a  matter 
on  which  reasonable  men  may  differ,  as  in  the  proper  sort  of 
medical  attendance  to  call  in  for  a  sick  person,^  or  the  proper 
remedies  to  apply,^  is  not  sufficient.  But  carelessness  in 
handling  a  weapon  that  is  dangerous  to  life  is  criminaU 

Whether,  in  determining  the  defendant's  negligence  he 
should  be  judged  by  the  standard  of  the  average  reasonable 
man,  or  by  his  own  standard  of  care  is  a  point  upon  which 
the  decisions  do  not  agree.     On  principle  it  would  seem  clear 

1  Reg.  V.  Shepherd,  1  L.  &  C.  147,  M.  223.  There  being  no  common 
law  of  crimes  in  Ohio,  an  act,  though  grossly  negligent,  cannot  be  crimi- 
nally so,  unless  forbidden  by  the  criminal  law  of  the  State  :  Johnson  v. 
S.,  66  O.  St.  59,  63  N.  E.  GOT,  61  L.  R.  A.  277,  with  elaborate  note  on 
homicide  through  negligence. 

2  Reg.  V.  Smith,  10  Cox  C.  C.  82. 

3  U.  S.  V.  Knowles,  4  Sawy.  517,  Fed.  Cas.  No.  15,540;  Re  Doig,  4 
Fed.  1!)3 ;  and  see  ante,  §  24. 

4  Reg  V.  Noakes,  4  F.  &  F.  920;  Reg.  v.  Finney,  12  Cox.  C.  C.  625, 
K.  120;  Reg.  v.  Nicholls,  13  Cox  C.  C.  75  ;  Reg.  v.  AVagstaffe,  10  Cox 
C.  C.  530,  C.  100;  S.  v.  Hardister,  38  Ark.  605. 

^  Reg.  V.  Wagstaffe,  ante. 

6  S.  V.  Hardister,    ante. 

T  S.  V.  Ilardie,  47  la.  017,  K.  123 ;  Chrystal  v.  C,  72  Ky.  669. 


Sect.  32.]  GENERAL  PRINCIPLES.  35 

that,  since  a  criminal  frame  of  mind  is  essential  to  punisba- 
bilil}',  and  there  is  no  criminal  intent,  the  defendant  cannot 
be  said  to  be  in  a  punishable  frame  of  mind  unless  he  per- 
sonally must  have  known  that  his  actions  were  grossly  negli- 
gent.i  If  the  action  of  the  defendant  is  prescribed  by  law, 
then  his  belief  as  to  the  necessity  or  reasonableness  of  the 
requirement  can  have  no  bearing  on  his  criminal  liability,  but 
he  is  held  up  to  the  external  standard  thus  established.^ 

§  32.  Specific  Intent.  —  When  a  specific  intent  is  made  an 
ingredient  in  crime,  —  as  where  one  is  charged  with  an  assault 
■with  intent  to  murder,  or  to  commit  rape,  or  with  a  burglarious 
entering  with  intent  to  steal,  —  the  offence  is  not  committed  un- 
less the  accused  is  actuated  by  the  specific  intent  charged.  The 
intent  to  commit  another  crime,  though  of  equal  grade  and  of 
the  same  character  with  the  one  charged,  will  not  constitute 
the  offence  charged.^  Thus  an  indictment  for  wounding  with 
intent  to  maim  and  disable  is  not  sustained  by  showing  that 
the  wounding  was  with  intent  to  escape  apprehension,*  nor  an 
indictment  for  conspiracy  with  intent  to  defraud  X  by  show- 
ing an  intent  to  defraud  Y.^ 

Instances  of  specific  intent  are  malice,  premeditation,  intent 
to  steal,  to  defraud,  etc.     In  all  cases  where  an  act  is  not 

1  Reg.  y.  Wagstaffe,  10  Cox  C.  C.  530,  C.  100 ;  Reg.  v.  Elliott,  16  Cox  C.  C. 
710;  S.  V.  Obershaw,  11  Mo.  App.  85.  As  to  physicians,  that  it  is  enough 
if  they  act  in  good  faith  and  by  their  own  best  lights :  Reg.  v.  Markuss, 
4  F.  &  F.  356,  K.  121 ;  S.  i'.  Schulz,  55  la.  628,  8  N.  W.  469 ;  Caywood 
V.  C,  7  Ky.  L.  R.  224;  C.  v.  Thompson,  0  Mass.  134;  Rice  v.  S.,  8  Mo. 
561  ;  Robbius  v.  S.,  8  O.  St.  131 ;  contra,  that  a  person  acting  as  physi- 
cian must  exercise  the  skill  and  foresight  of  an  average  reasonable  man  in 
his  position:  Reg.  v.  INIcDonald,  12  Cox  C.  C.  534,  M.  220;  C.  v.  Pierce, 
138  ]Mass.  165;  S.  v.  Power,  24  Wash.  34,  63  E.  1112. 

2  Reg.  V.  Downes,  13  Cox  C.  C.  Ill,  C.  102;  Reg.  v.  Senior,  19  Cox 
C.  C.  219,  M.  143  ;  P.  v.  Pierson,  80  App.  Div.  (N.  Y.)  415,  81  X.  Y.  S. 
214 ;  U.  S.  V.  Beacham,  29  Fed.  284.  Compare  S.  v.  Chenoweth,  Ind.  , 
71  N.  E.  197. 

3  Rex  V.  Boyce,  1  Moo.  C.  C.  29;  note  to  U.  S.  v.  Taintor,  2  Green's 
Cr.  L.  Rep.  214. 

4  Rex  i:  Boyce,  ante ;  Rex  v.  Duffin,  R.  &  R.  365,  :\L  167  ;  Rex  v.  Kelly, 
1  Crawf.  &  D.  186;  Rex  v.  Pearce,  1  Leach,  4th  ed.  594. 

5  C.  V.  Harley,  7  Met.  (Mass.)  506. 


36  CRIMINAL  LAW.  [Sect.  32. 

criminal,  or  is  criminal  in  a  less  degree,  unless  committed  in 
a  certain  state  or  condition  of  mind,  express  proof  of  this 
specific  condition  of  mind  is  necessary,  and  proof  of  general 
criminal  intent  is  not  enough.^ 

Such  specific  intent  cannot  be  presumed.  It  must  be 
proved  by  the  government  as  one  of  the  necessary  facts  of 
the  case,  though  the  defendant's  acts  may  be  shown  as  evi- 
dence from  which  the  jury  can  find  that  he  was  actuated  by 
the  intent  charged.  Thus  in  an  indictment  for  larceny  the 
fact  that  the  defendant  took  the  goods  knowing  them  to  be- 
long to  another  is  grounds  for  the  jury  to  find  that  in  fact  he 
took  them  a nimo  fur atidi  ;^  so  in  an  indictment  for  cutting 
with  intent  to  maim,  the  fact  that  the  defendant  intentionally 
used  a  weapon  likely  to  maim  may  justify  the  jury  in  finding 
that  such  was  his  intent  when  he  struck  the  blow.^ 

Since  the  existence  of  the  specific  intent  is  thus  a  question 
of  fact  in  each  case,  while  the  jury  may  often  be  justified  in 
concluding  that,  from  the  action  of  the  defendant  under  the 
circumstances,  he  must  as  a  sane  man  have  had  the  specific 
intent  with  which  he  was  charged,  it  is  always  open  to  the 
defendant  to  lay  other  evidence  before  the  jury  to  show  that, 
the  natural  inference  to  the  contrary  notwithstanding,  he  did 
not  have  the  specific  intent  charged.  Thus  where  the  defend- 
ant was  charged  with  entering  a  stable  with  intent  to  kill  a 
horse,  he  was  allowed  to  show  that  although  he  did  intention- 
ally enter  and  cut  the  leg  of  the  horse  so  that  the  animal  died, 
his  intent  was  only  to  disable  it ;  *  so  in  an  indictment  for 

1  Rex   V.  Scofield,    Cald.   397;  C.  v.  Walden,   3  Cush.   (Mass.)  558, 

C.  lis. 

2  S.  V.  Patton,  1  Marv.  (Del.)  552,  41  Atl.  193. 

8  S.  V.  Jones,  70  la.  505,  30  N.  W.  750.  See  also  as  to  the  finding  of 
the  existence  of  the  specific  intent  in  forgery  :  Curtis  r.  S.,  118  Ala.  125,  24 
So.  HI;  false  pretences:  P.  v.  Baker,  96  N.  Y.  340;  burglary:  Ilarvick 
v.  S.,  49  Ark.  514,  6  S.  W.  19;  conspiracy:  P.  v.  Flack,  125  N.  Y.  324,  26 
N.  E.  267  ;  assault  with  intent:  Ogletree  v.  S.,  28  Ala.  693;  Kimball  v. 
S.,  112  Ga.  541,  37  S.  E.  886;  Roberts  v.  P.,  19  Mich.  401;  defrauding 
the  government :  U.  S.  v.  Buzzo,  18  Wall.  125 ;  U.  S.  v.  Houghton,  14 
Fed.  514. 

4  Dobb's  Case,  2  East  P.  C.  513. 


Sect.  33.]  GENERAL   PRIX'CIPLES.  37 

cutting  down  a  boundary  tree  with  intent  to  destroy  the 
mark,  in  spite  of  the  natural  presumption  that  the  defendant 
in  so  doing  must  have  done  it  with  the  intent  of  obliterating 
the  boundary,  he  may  show  that  in  fact  his  intent  was 
otherwise.^ 

Here,  however,  as  wuth  general  criminal  intent,  the  distinc- 
tion between  intent  and  motive  must  be  borne  in  mind.  Thus 
where  the  defendant  was  indicted  for  forging  a  receipt  with 
intent  to  defraud  A,  and  it  appeared  that  he  made  the  forgery 
ia  order  to  get  the  money  thereby  from  A,  it  was  immaterial 
that  he  did  not  wish  to  injure  A  and  did  it  only  because  he 
needed  the  money .^ 

§  33.  Malice.  —  Although  in  a  popular  sense  malice  means 
hatred,  hostility,  or  ill  will,  yet  in  a  legal  sense  it  has  a  much 
broader  signification.  In  the  latter  sense  it  is  the  conscious 
violation  of  the  law  to  'the  prejudice  of  another.  It  is  evil  in- 
tent or  disposition,  whether  directed  against  one  individual  or 
operating  generally  against  all,  from  which  proceeds  any  un- 
lawful and  injurious  act,  committed  without  legal  justification. 
Actions  proceeding  from  a  bad  heart  actuated  by  an  unlawful 
purpose,  or  done  in  a  spirit  of  mischief,  regardless  of  social 
duty  and  the  rights  of  others,  are  deemed  by  the  law  to  be 
malicious.3  The  voluntary  doing  of  an  unlawful  act  is  a  suffi- 
cient ground  upon  which  to  raise  the  presumption  of  malice. 
And  so  if  the  act  be  attended  by  such  circumstances  as  are 

1  S.  V.  Malloy,  34  N.  J.  L.  410.  See  also  Reg.  v.  Gurnsey,  1  F.  &  F. 
304;  S.  V.  Jefferson,  3  Ilarr.  (Del.)  571 ;  P.  v.  Cotteral,  18  Johns.  (X.  Y.) 
ll.j;  P.  V.  Orcutt,  1  Parker  Cr.  R.  (N.  Y.)  252;  S.  v.  Mitchell,  27  N.  C. 
3.J0. 

2  Rex  V.  Sheppard,  R.  &  R.  1G9 ;  Reg.  v.  Cooke,  8  C.  &  P.  582  ;  Reg.  v. 
Todd,  1  Cox  C.  C.  57.  See  also  Reg.  v.  Regan,  4  Cox  C.  C.  33.5,  M.  141 ; 
Rex  V.  Gillow,  1  Moo.  85,  M.  213;  U.  S.  v.  William  Arthur,  3  Ware,  27G, 
Fed.  Cas.  No.  16,702;  post,  §  254.  Compare  Rex  v.  Williams,  1  Leach, 
4th  ed.  529,  M.  211. 

8  Foster  Cr.  Law,  250;  Ferguson  v.  Kinnoull,  9  C.  &.  F.  251  at  302, 
321 ;  Crowell  v.  P.,  190  111.  508,  60  N.  E.  872  ;  S.  v.  Decklotts,  19  la.  447; 
C.  ('.  Webster,  5  Cash.  (Mass.)  295  at  305  ;  C.  v.  Chance,  174  Mass.  245, 
54  N.  E.  551 ;  Bevans  v.  U.  S.,  Fed.  Cas.  No.  14,589  ;  Bias  v.  U.  S.,  3  Lid. 
Terr.  27,  53  S.  W.  471.     See  C.  v.  Walden,  3  Cush.  (Mass.)  558,  C.  118. 


38  CRIMINAL  LAW.  [Sect.  34. 

the  ordinary  symptoms  of  a  wicked  and  depraved  spirit,  the 
law  will,  from  these  circiunstances,  imply  malice,  without  ref- 
erence to  what  was  passing  in  the  mind  of  the  accused  at  the 
time  when  he  committed  the  act.^ 

Envy  and  hatred  both  include  malice ;  but  the  latter  may 
exist  without  cither,  and  is  a  more  general  form  of  wicked- 
ness. As  to  the  proof  of  malice  and  the  degree  thereof  neces- 
sary to  constitute  specific  crimes,  more  will  be  said  hereafter, 
as  occasion  requires. ^  Something  will  also  be  said  under 
Homicide  of  the  not  now  very  material  distinction  between 
express  and  implied  malice. 

§  34.  Constructive  Specific  Intent.  —  The  doctrine  of  con- 
structive intent  is  clearly  inapplicable  in  a  case  where  a  spe- 
cific intent  must  be  proved  ;  for  an  express  intent  is  necessary. 
Tluis,  where  a  statute  punished  malicious  injury  to  property, 
and  the  defendant  threw  a  stone  intending  to  injure  a  human 
being,  and  in  fact  injured  property,  it  was  held  that  the  spe- 
cific malice  required  by  the  statute  was  not  present;^  and 
where  a  statute  punished  the  malicious  destruction  of  a  vessel, 
and  the  defendant  while  stealing  rum  in  a  vessel  accidentally 
set  fire  to  it  and  destroyed  it,  he  was  held  not  guilty  under  the 
statute.^  But  the  specific  intent  may  be  present,  though  the 
result  is  not  precisely  what  was  intended.  Thus  one  may  be 
convicted  under  a  statute  for  maliciously  injuring  a  person, 
though  he  maliciously  struck  at  A,  and  in  fact  hit  B,  or  for 
killing  with  malice  aforethought  when  he  left  poison  for  A 
which  B  took.^  So  where  he  shoots  at  A  and  hits  B  he  may 
be  indicted  for  an  assault  with  intent  to  kill.  So  where  A 
attempts  to  kill  himself  and  kills  B  he  is  guilty  of  murder.*^ 
The  specific  intent  called  for,  viz.,  the  malice  in  the  one  case 

1  S.  V.  Smith,  2  Strobli.  (S.  C.)  77. 

2  See  Arson,  Homicide,  and  Malicious  INIischief. 

3  Reg.  V.  Peml.liton,  12  Cox  C.  C.  0U7,  C.  120,  K.  157,  M.  171;  Niblo  v. 
S.  (Tex.),  79  S.  W.  31. 

*  Reg.  V.  Faulkner,  13  Cox  C.  C.  550,  C.  106,  K.  152. 

6  Saunder'.s  Case,  2  Plowd.  473,  C.  176,  K.  81  ;  Gore's  Case,  91  Co.  81  a, 
C.  182,  M.  557;  post,  §§  221  et  seq. 

6  S.  r.  Lindsey,  19'Xev.  47,  5  P.  822;  S.  v.  Levelle,  34  S.  C.  120,  13  S. 
E.  319,  M.  604.     Compare  C.  v.  Mink,  123  Mass.  422,  C.  104,  K.  110. 


Sect.  34.]  GENERAL  PRINCIPLES.  39 

and  the  intent  to  kill  in  the  other  case,  here  existed.^  So 
where  A  attempts  to  commit  what  he,  because  of  a  bona  fide 
mistake  of  fact  as  to  the  age  of  the  girl,  believes  to  be  forni- 
cation, but  which,  because  of  her  age,  is  rape,  he  may  be  in- 
dicted for  an  attempt  to  commit  rape,  the  specific  intent  being 
of  so  similar  a  nature  as  to  supply  that  element  in  the  crime.^ 
On  the  other  hand  where  the  defendant  strikes  or  shoots  at 
A  and  hits  B,  an  indictment  for  assault  on  B  with  intent  to 
wound  or  kill  B  is  not  good,  because  the  intent  as  now  alleged 
in  the  more  specific  form  cannot  be  established.^  And  so  an 
indictment  for  assaulting  X  with  intent  to  kill  him  is  not  sus- 
tained by  showing  that  the  defendant  wantonly  shot  into  a 
crowd  ;^  a  fact  that  would  have  been  sufficient  had  the  indict- 
ment cliarged  a  malicious  shooting.^ 

A  different  question  arises  where  the  defendant,  wishing  to 
kill  A,  sees  B,  and  believing  him  to  be  A,  assaults  him.  Tlie 
indictment  for  an  assault  on  B  with  intent  to  injure  him,  though 
sometimes  treated  as  a  case  of  constructive  specific  intent,^ 
would  seem  to  be  a  case  of  actual  intent,  since  the  defendant 
did  in  fact  intend  to  injure  the  person  before  him,  though  his 
motive  was  to  injure  another.'^ 

It  is  clear  that  negligence,  however  gross,  cannot  supply  the 
place  of  specific  intent;^  though  it  may  often  furnish  very 

1  Pteg.  V.  Latimer,  17  Q.  B.  D.  350,  16  Cox  C.  C.  70,  K.  144,  M.  163 ; 
Walls  V.  S.,  90  Ala.  618,  8  So.  680;  Bush  v.  S.,  136  Ala.  8.5,  33  So.  878. 

2  C.  V.  Murphy,  165  Mass..  66,  42  N.  E.  504.  The  decision  was  proba- 
bly influenced  by  the  nature  of  the  crime ;  see  §  28,  ante. 

3  Reg.  V.  Hewlett,  1  F.  &  F.  91 ;  Lacefield  v.  S.,  34  Ark.  275.  In 
Rex  V.  Williams,  1  jNIoo.  107,  the  defendant  was  convicted  on  an  indic^t- 
ment  for  killing  a  sheep  with  intent  to  steal  the  whole  carcass  where  the 
evidence  showed  an  intent  to  steal  part  only. 

*  Scott  6-.  S.,  49  Ark.  156,  4  S.  W.  750;  contra,  P.  v.  Raher,  92  Mich. 
165,  52  N.  W.  625. 

6  Rex  V.  Bailey,  R.  &  R.  1,  ante,  §  33. 

6  Reg.  V.  Lynch,  1  Cox  C.  C.  3G1. 

7  Reg.  V.  Smith,  7  Cox  C.  C.  51;  Reg.  ;;.  Stopford,  11  Cox  C.  C.  643; 
contra,  Rex  v.  Holt,  7  C.  &  P.  518,  M.  169 ;  Reg.  v.  Ryan,  2  Moo.  &  R. 
213. 

8  U.  S.  V.  Moore,  2  Low.  232,  Fed.  Cas.  No.  15,803.  Compare  U.  S. 
V.  Thomson,  12  Fed.  245. 


40  CEIMINAL   LAW.  [Sects.  35, 36. 

strong  grounds  for  inferring  the  existence  in  fact  of  the  specific 
intent,  a  matter  wliicli  will  be  discussed  under  the  various 
crimes  where  the  question  arises. 

CRI3IINAL    CAPACITY. 

§  35.  Who  May  Become  Criminal. —  No  person  can  be  guilty  of 
a  crime  unless  he  has  both  mental  and  physical  capacity. 

§  36.  Infants,  therefore,  are  not  amenable  to  the  criminal  law 
until  they  have  reached  that  degree  of  understanding  which 
enables  them  to  appreciate  the  quality  of  the  act.  The  law 
fixes  this  limit  arbitrarily,  for  the  sake  of  convenience,  at  the 
age  of  seven  years,  and  will  not  listen  to  evidence  that  a  per- 
son below  this  age  is  capable  of  understanding  the  quality  of 
his  act.  Between  the  ages  of  seven  and  fourteen,  with  some 
exceptions,  the  presumption  is  that  the  infant  lacks  discretion 
or  Ciimimal  capacity,  and  the  burden  of  proof  that  he  has 
such  capacity  is  upon  the  prosecutor.^  If  there  be  no  evidence 
upon  this  point  the  prosecution  fails.  It  would  seem  that  the 
prosecution  would  also  fail  unless,  when  all  the  evidence  is  in, 
the  jury  is  convinced  beyond  a  reasonable  doubt  of  the  de- 
fendant's criminal  responsibility .^  The  burden  of  raising  this 
doubt,  to  begin  with,  would  seora  to  be  upon  the  defendant ; 
he  must,  either  by  his  appearance  or  other  evidence,  raise  a 
reasonable  doubt  in  the  minds  of  the  jury  as  to  his  being  over 
fourteen.^  There  are  two  generally  admitted  exceptions  to 
this  rule,  —  a  female  under  the  age  of  ten  years  being  con- 
clusively presumed  to  be  incapable  of  consenting  to  sexual 
irttercourse,  and  a  male  under  fourteen  being  conclusively 
presumed  to  be  incapable  of  committing  rape.*     In  Ohio  this 

1  Harrison  v.  S.  (Ark.),  78  S.  W.  763;  Angelo  v.  P.,  96  111.  209  ;  C.  v. 
^lead,  10  Allen  (Mass.),  398;  S.  v.  Doherty,  2  Overt.  (Tenn.)  80. 

2  (iodfrey  v.  S.,  31  Ala.  323,  M.  252;  S.  v.  George,  4  Penne.  (Del.)  57, 
.54  Atl.  745;  HeUman  v.  C,  84  Ky.  457,  1  S.  W.  731;  S.  v.  Tice,  90  Mo. 
112,  2  S.  W.  2G9;  S.  v.  Goin,  9  Humph.  (Tenn.)  175;  Law  v.  C,  75  Va. 
885. 

8  Compare  S.  v.  Arnold,  13  Ire.  (N.  C.)  184,  U.  255. 

4  Reg.  V.  Philips,  8  C.  &  P.  736  ;  Reg.  v.  Jordan,  9  C.  &  P.  118;  ex- 
cept, indeed,  by  being  present,  aiding  and  abetting  :  Law  v.  C,  75  Va. 
885. 


Sect,  a:.]  GENERAL  PRINCIPLES.  41 

presumption  is  held  to  be  disputable  ;i  and  in  Massachusetts 
it  has  been  held  by  a  divided  court  that  a  boy  under  the  age  of 
fourteen  may  be  guilty  of  an  assault  with  intent  to  commit  rape, 
on  the  theory  that  penetration  only  is  necessary  to  the  consum- 
mation of  the  crime.'-^  In  California,  by  statute,  all  infants 
under  fourteen  are  incapable.^ 

After  the  age  of  fourteen,  the  presumption  is  that  the  in- 
fant has  criminal  capacity,  and  the  presumption  is  sufficient, 
if  not  met  by  counter  proof,  to  warrant  the  jury  in  finding  the 
fact.  But  the  defendant  may  prove  his  incapacity.*  An  ex- 
ception to  this  last  rule,  in  the  nature  of  physical  incapacity, 
is  where  an  infant  over  fourteen  fails  in  some  public  duty,  as 
to  repair  a  highway.  In  this  case  he  is  held  incapable,  as  he 
has  not  command  of  his  fortune  till  he  arrives  at  his  ma- 
jority.^ 

§  37.  Coercion.  Fraud.  —  Married  women  are  presumed  to 
be  so  far  under  the  control  and  coercion  of  their  husbands, 
that  in  many  cases  they  are  not  held  responsible  for  crimes 
committed  in  their  presence.*^  The  defence  is  a  technical  one, 
and  applies  only  when  the  parties  are  husband  and  wife  and 
the  act  is  done  in  the  husband's  presence.  Where  the  husband 
is  not  present  there  is  no  presumption  of  coercion  ;^  but  she 
may  be  in  his  presence,  although  for  the  time  out  of  his  sight  or 

1  Williara.s  v.  S.,  U  O.  222.  See  also  Heilman  v.  C,  84  Ky.  457,  1 
S.  W.  731;  S.  V.  Jones,  39  La.  Ann.  935,  3  So  57;  P.  v.  Randolph,  2 
Park.  Cr.  R.  (N.  Y.)  174. 

2  C.  V.  Green,  2  Pick.  (Mass.)  380.  But  see  also,  upon  this  point, 
Rex  V.  Eldershaw,  3  C.  &  P.  396 ;  C.  v.  Lanigan,  2  Boston  Law  Reporter, 
49,  Thatcher,  J.;  P.  i;.  Randolph,  2  Park.  C.  R.  (X.  Y.)  174 ;  S.  v.  Sam, 
Winston  (N.  C),  300. 

3  Rev.  Stat.  1852,  c.  99. 

4  Rex  V.  Owen,  4  C.  &  P.  236  ;  Marsh  v.  Loader,  14  C.  B.  n.  s.  535; 
Rex  V.  York,  and  note,  1  Lead.  Cr.  Cas.  71;  Reg.  v.  Smith,  1  Cox  C.  C. 
260;  C.  ('.  Mead,  10  Allen  (Mass.),  398;  P.  v.  Davis,  1  Wheeler  (N.  Y.), 
C.  C.  230;  S.  V.  Learuard,  41  Yt.  585. 

5  1  Hale  P.  C.  20. 

6  1  Hale  -^P.  C.  44  ;  Reg.  v.  Smith,  D.  &  B.  553.  K.  65 ;  C.  v.  Eagan,  103 
Mass.  71. 

7  C.  V.  Trvon,  99  Mass.  442.  See  Rex  v.  Hughes,  2  Lewin  C.  C  229, 
M.  110;  Rex  v.  Morris,  R.  &  R.  270. 


42  CRIMINAL  LAW.  [Sect.  37. 

not  in  immediate  proximity  to  him.^  Tlie  older  rule  seems  to 
have  been  that  these  facts  being  shown,  the  presumption 
of  coercion  was  conchisive.^  It  is  now  well  established 
that  this  presum|)tion  is  only  prima  facie,  and  may  be  rebutted 
by  evidence  that  the  woman  was  not  coerced,  but  acted  volun- 
tarily, according  to  her  own  pleasure.^  There  are  exceptions 
to  this  incapacity  of  married  women,  upon  which,  however,  the 
authorities  are  not  agreed.  She  seems  to  be  responsible  for 
treason  and  murder,  by  the  general  consent  of  the  authorities, 
and  perhaps  for  robbery,  perjury,  and  forcible  and  violent  mis- 
demeanors generally.*  It  has  been  asserted,  however,  that 
there  are  no  actual  decisions  that  the  defence  of  coercion  may 
not  be  set  up  even  for  these  crimes.^  In  certain  minor 
offences  relating  to  the  management  of  the  house,  such  as 
keeping  a  disorderly  house,  the  doctrine  of  coercion  is  not 
recognized.^ 

But  there  are  cases  of  anon-consenting  will,  as  where  one  is 
compelled,  by  fear  of  being  put  to  death,  to  join  a  party  of 
rebels,  or  is  entrapped  into  becoming  the  innocent  agent  of 
another,  whereby  a  person  unwittingly  or  unwillingly,  rather 
than  through  incapacity,  becomes  the  instrument  of  crime 
wielded  by  the  hand  of  another.  The  will  is  constrained  by 
fear  or  deceived  by  fraud  into  what  is  only  an  apparent  consent.'' 
The  fact  that  the  defendant  was  acting  as  the  mere  agent  or 

1  Connolly's  Case,  2  Lewia  C.  C.  229,  M.  110;  C.  v.  Munsej,  112 
Mass,  287. 

2  Anon.,  Kel.  31,  K.  6G;  Rex  n.  Knight,  1  C.  &  P.  116,  and  note. 

3  Reg.  V.  Pollard,  8  C.  &  P.  553  ;  Reg.  v.  Cruse,  8  C.  &  P.  511,  K.  66; 
Rex  V.  Stapleton,  Jebb  C.  C.  93;  S.  v.  Cleaves,  59  Me.  298;  C  v.  Butler, 
1  Allen  (Mass.),  4;  Seller  i;.  P.,  77  N.  Y.  411,  M.  112;  Uhl  v.  C,  6 
Grat.  (Va.)  706;  Miller  v.  S,  25  Wis.  384,  2  Green's  Cr.  Law  Rep. 
2m,  note;  U.  S.  v.  Terry,  42  Fed.  317. 

*  See  the  authorities  collected  in  note  to  C.  v.  Xeal,  1  Lead.  Cr.  Cas. 
81 ;  3  Greenl.  Ev.,  15th  ed.,  §  7. 

5  1  Bish.  New  Cr.  L.,  §  358.  See  Reg.  v.  Dykes,  15  Cox  C.  C.  771 ;  P. 
V.  Wright,  38  Mich.  741. 

6  Reg.  V.  Williams,  10  Moo.  03;  C.  v.  Cheyney,  114  Mass,  281  ;  S.  o. 
Pientz,  11  Mo.  27, 

'  Foster  Cr.  Law,  14  ;  1  Hale  P.  C.  .50;  Steph.  Dig.  Cr.  Law,  art.  31; 
Rex  f.  Crutchley,  5  C.  &  P.  133.     See  post,  §  68, 


Sect.  38.]  GENERAL  PRINCIPLES.  43 

servant  of  another  in  the  commission  of  a  crime  will  not  ex- 
cuse him.^ 

§  38.  Corporations,  being  impersonal,  and  merely  legal  en- 
tities, without  souls,  as  it  has  been  said,  though  incapable  of 
committing  those  crimes  which  can  only  proceed  from  a  cor- 
rupt mind,  may  nevertheless  be  guilty  of  a  violation  not  only 
of  statutory  but  common  law  obligations  both  by  omission, 
and,  by  the  greater  weight  of  authority,  by  commission.  They 
cannot  commit  an  assault,  though  they  may  be  held  civilly  re- 
sponsible for  a  tort  committed  by  their  agent.^  Nor  can  tbey 
commit  any  crimejm|^Mn^g(^crii^^  But  they  may 

createViiuisance,  through  the  acts  of  their  agents,  and  by  the 
very  mode  of  their  operations.  Thus  corporations  may  be 
indicted  for  nuisance  in  obstructing  a  highway,^  in  which  case 
they  are  subject  to  indictment  and  punishment  by  fine,  or  even 
the  abrogation  of  their  charter,  —  the  only  punishments  ap- 
plicable to  a  corporation ;  the  latter  a  sort  of  capital  punish- 
ment, inflicted  when  the  corporation  has  forfeited  the  right  to 
live.* 

A  corporation  is  also  indictable  for  negligence  in  the  non- 
performance of  the  duties  imposed  upon  it  by  its  charter,  or 
otherwise  by  law.^  It  has.  been  held  in  some  cases  that  a  cor- 
poration is  not  indictable  for  a  misfeasance,^  —  in  opposition, 
however,  to  the  great  weight  of  authority.'' 

While  it  is  thus  well  established  that  corporations  may  be 
indicted  for  nuisances  both  in  the  way  of  misfeasances  and  non- 

1  C.  V.  Hadley,  11  Met.  (Mass.)  66. 

2  Anwell  &  Ames  on  Corporations,  §§  311,  387. 

8  R.  R.  Co.  V.  P.,  44  111.  App.  632 ;  S.  r.  Ry.  Co.,  77  la.  442,  42  X.  W. 
36.5;  S.  V.  R.  R.  Co.,  88  la.  .508,  .53  N.  W.  727;  S.  v.  R.  R.  Co..  23  X.  J. 
L.  360 ;  Ry.  Co.  v.  C,  90  Pa.  300;  S.  v.  R.  R.  Co.,  91  Tenn.  445,  19  S.  W. 
229. 

4  R9g.  V.  Railway  Co.,  9  Q.  B.  315;  Delaware  Canal  Co.  v.  C,  60  Pa. 
367;  1  Bish.  Cr.  Law,  §§  420.  422. 

5  Reg.  I'.  Railway  Co.,  3  Q.  B  22  V,  P.  v.  Albany,  11  Wend.  (X.  Y.) 
539. 

6  S.  V.  Great  Works,  &c.,  20  Me.  41  ;  C  v.  Swift  Run,  &c.,  2  Va.  Cas. 
302. 

"  SeeC.  V.  Proprietors,  &c.,  2  Gray  (Mass.),  339;  1  Bish.  Cr.  Law, 
§§  420,  422. 


4 J:  .  CRIMINAL  LAW.  [Sects.  39, 40. 

feasances,  these  being  liabilities  that  exist  irrespective  of 
criminal  intent,  it  seems  by  no  means  clear  that  tlie  criminal 
liability  of  corporations  is  to  be  thus  limited.  A  corporation 
must  necessarily  act  by  agents :  if  it  can  perform  a  physical 
act  by  tliem  so  as  to  render  itself  punishable  therefor,  there 
seems  no  reason  in  principle  why  it  may  not  also  by  the  same 
means  have  a  crinuinal  intent  attributable  to  itself  as  a  distinct 
entity.  The  civil  responsibility  of  corporations  in  cases  in- 
volving intent,  as  for  malicious  libel  and  malicious  prosecution, 
seems  to  be  well  established  ;  ^  and  it  is  hard  to  see  why  the 
criminal  liability  may  not  similarly  be  brought  home.  It  has 
been  held  that  a  corporation  is  liable  for  intentionally  working 
men  over  eight  hours  per  day,^  so  a  corporation  is  punishable 
for  contempt,^  for  libel,*  and  for  taking  salmon  in  violation  of 
fishery  statutes.^ 

The  criminal  liability  of  the  corporation,  as  such,  in  no  wise 
affects  that  of  the  individual  members  of  the  corporation  who 
may  have  connected  themselves  personally  with  the  criminal 
act,  as  by  soliciting  or  abetting  or  participating  in  the  cjuimis- 
sion  thereof.** 

§  39.  Insane  Persons.  —  Insanity,  nnder  which  the  law  in- 
cludes all  forms  of  mental  disturbance,  whether  lunacy,  idiocy, 
dementia,  monomania,  or  however  otlierwise  its  special  phe- 
nomena may  be  denominated,  is  another  ground  upon  which 
persons  are  held  incapable  of  committing  a  crime.  Insanity 
is  mental  unsoundness.  It  exists  in  different  forms  and  de- 
grees. A  higher  degree  of  insanity  is  requisite  to  protect  a 
person  from  the  consequences  of  a  criminal  violation  of  law, 
than  to  relieve  him  from  the  obligation  of  a  contract. 

§  40.  Test  of  Insanity.  Knowledge  of  Right  and  Wrong.  — 
Various  tests  have  been  proposed  by  the  courts  for  determin- 

^  5  Thompson  Corp.,  §§  0310  et  seq. 

2  U.  S.  V.  Kelso  Co.,  86  Fed.  .304,  M.  328. 

3  Telegram  Co.  v.  C,  172  Mass.  294,  52  N.  E.  445 ;  P.  v.  R.  R.  Co.,  12 
AI)b.  P.  R.  (N.  Y.)  171. 

*  S.  V.  Atchison,  3  Lea  (Tenn.),  729. 

5  U.  S.  V.  Packers'  Ass'n.,  1  Alaska,  217. 

«  Reg.  i'.  Ry.,  9  Q.  B.  315  ;  P.  v.  England,  27  Hun  (N.  Y.),  139. 


Sect.  41.]  GENERAL  PRINCIPLES.  45 

ing  the  fact  of  insanity.  Tlie  one  which  most  widely  prevails 
is  tliat  laid  down  by  the  judges  of  England  in  M'Xaghten's 
Case/  to  wit :  if  the  offender  has  sufficient  mental  capacity  to 
know  that  the  act  which  he  is  about  to  commit  is  wrong 
and  deserves  punishment,  and  to  apply  that  knowledge  at  the 
time  when  the  act  is  committed,  he  is  not  in  the  eye  of  tlic 
criminal  law  insane,  but  is  responsible.  All  persons  whose 
minds  are  diseased  or  impaired  to  the  extent  named,  and  all 
whose  minds  are  so  weak  —  idiots,  lunatics,  and  the  like  ^  — 
that  they  have  not  the  sufficiency  of  understanding  and  capac- 
ity before  stated,  come  under  the  protection  of  irresponsibility. 
And  in  many  jurisdictions  this  is  the  only  test  for  insanity.^ 

§  41.  Irresistible  Impulse.  —  Insanity  also  sometimes  appears 
in  the  courts  in  the  form  of  what  is  called  an  irresistible  im- 
pulse to  commit  crime.  And  thougli,  as  we  have  seen,  many 
jurisdictions  do  not  recognize  this  as  a  form  of  insanity  which 
will  excuse  from  crime,  yet  in  other  jurisdictions  it  is  recog- 
nized by  the  courts  if  it  is  the  product  of  disease ;  since  an 

1  10  CI.  &  F.  200,  K.  43,  M.  256. 

2  S.  V.  Richards,  39  Conn.  591. 

3  Reg.  V.  Haynes,  1  F.  &  F.  66(3,  C.  76,  K.  52;  S.  v.  Johnson,  40  Conn. 
136  ;  S.  V.  Kavanaugh,  4  Fenne.  (Del.)  131,  53  Atl.  335 ;  Spann  v.  S.,  47  Ga. 
553 ;  S.  V.  Shippey,  10  Minn.  223  ;  S.  v.  Iluting,  21  Mo.  464;  S.  v.  Pike,  49 
N.  H.  399;  Fhmagan  v.  P.,  52  N.  Y.  467  ;  S.  v.  Brandon,  8  Jones  (N.  C), 
463;  Blackburn  v.  S.,  23  O.  St.  146  ;  Brown  v.  C,  78  Pa.  122;  C.  v.  Gear- 
hardt,  205  Pa.  387,  54  Atl.  1029  ;  Lowe  v.  S.,  44  Tex.  Cr.  R.  224,  70  S. 
W.  206;  U.  S.  V.  McGlue,  1  Curtis  (U.  S.  C.  Ct.)  1,  Fed.  Cas.  No. 
15,679. 

The  following  States  have  not  only  adopted  the  "  right  and  wrong " 
test,  but  have  also  definitely  rejected  "  irresistible  impulse  "  as  affecting 
the  defendant's  sanity,  holding  that  it  constitutes  no  defence  :  P.  v.  Iloin, 
62  Cal.  120;  P.  v.  Owens,  123  Cal.  482,  56  P.  281  ;  Davis  v.  S.,  44  Fla.  32, 
32  So.  822 ;  S.  v.  Mowry,  37  Kan.  369,  15  P.  282 ;  S.  v.  Knight,  95  Me. 
467,  50  Atl.  276;  Spencer  y.  S.,  69  Md.  28,  13  Atl.  809;  S.  v.  Scott,  41 
Minn.  365,  43  N.  W.  62  ;  Cunningham  v.  S.,  56  Miss.  269,  M.  306;  S.  v. 
Berry,  179  Mo.  377,  78  S.  W.  611;  Flanagan  v.  P.,  supra;  S.  v.  Brandon, 
supra:  Genz  v.  S.,  59  X.  J.  L.  488,  37  Atl.  69  ;  S.  v.  Murray,  11  Or.  413, 
5  P.  55  ;  S.  V.  Alexander,  30  S.  C.  74,  8  S.  E.  440  ;  Wilcox  u.  S.,94  Tenn. 
106,  28  S.  W.  312;  Leache  v.  S.,  22  Tex.  App.  279,  3  S.  W.  539  ;  S.  r. 
Harrison,  36  AV.  Va.  729,  15  S.  E.  982,  M.  263;  U.  S.  v.  Guiteau,  10 
Fed.  161  ;  U.  S.  v.  Young,  25  Fed.  710. 


46  CRIMINAL  LAW.  [Sects.  42, 43. 

act  produced  by  diseased  mental  action  is  not  a  crime.^  But 
an  irresistible  impulse  is  not  a  defence,  unless  it  produced  the 
act  of  killing.  Yielding  to  an  insane  impulse  which  could 
have  been  successfully  resisted  is  criminal.'-^  The  man  who 
has  a  mania  for  committing  rape,  but  will  not  do  it  under  such 
circumstances  that  there  is  obvious  danger  of  detection,^  and 
the  man  who  has  a  mania  for  torturing  and  killing  children, 
but  always  under  such  circumstances  as  a  sane  man  would  be 
likely  to  adopt,*  in  order  to  avoid  detection,  are  not  entitled  to 
its  shelter.  This  plea  is  to  be  received  only  upon  the  most 
careful  scrutiny.^ 

§  42.  Emotional  Insanity,  which  is  a  newly  discovered,  or 
rather  invented,  phase  of  irresistible  impulse,  and  is  nothing 
but  the  fury  of  sudden  passion  driving  a  person,  otherwise 
sane,  into  the  commission  of  crime,  is  utterly  repudiated  by 
the  courts  as  a  ground  of  irresponsibility.^ 

§  43.  Moral  Insanity,^  or  that  obliquity  which  leads  men  to 
commit  crime  from  distorted  notions  of  what  is  right  and 
what  is  wrong,  and  impels  them  generally  and  habitually  in  a 

1  Parsons  v.  S.,  81  Ala.  577,  2  So.  8.5i  ;  S.  v.  AVhidsor,  5  Harr.  (Del.) 
512;  S.  V.  Felter,  25  la.  67 ;  Smith  v.  C,  1  Duv.  (Ky.)  221;  C.  v.  Rogers, 
7  Met.  (Mass.)  500  ;  Dejaruette  v.  C,  75  Va.  867. 

In  addition  to  the  above-mentioned  jurisdictions  the  following  seem 
directly  or  indirectly  to  recognize  irresistible  impulse  as  a  defence  :  Greene 
V.  S.,  6i  Ark.  523,  43  S.  W.  973 ;  S.  v.  Johnson,  40  Conn.  138  ;  Quatte- 
baum  V.  S.,  119  Ga.  433,  46  S.  E.  677;  Dacey  v.  P.,  116  111.  555,  6  N.  E. 
165;  Goodwin  v.  S.,  96  Ind.  550  ;  Plake  v.  S.,  121  Ind.  433,  23  N.  E.  273; 
Burgo  V.  S.,  26  Neb.  639,  42  N.  W.  701 ;  Blackburn  v.  S.,  23  O.  St.  146; 
Brown  v.  C,  78  Pa.  122 ;  Lowe  v.  S.,  118  Wis.  641,  96  N.  W.  417. 

2  S.  V.  Jones,  50  N.  H.  369  ;  S.  v.  Felter,  25  la.  67. 

8  See  testimony  of  Blackburn,  J.,  before  the  Parliamentary  Commit- 
tee on  Homicide,  cited  in  Wharton  on  Homicide,  §  582,  note. 

4  C.  V.   Pomeroy,  117  Mass.  143. 

6  Scott  V.  C,  4  Met.  (Ky.)  227 ;  Hopps  v.  P.,  31  111.  385  ;  C.  v.  Hosier,  4 
Ban-  (Pa.),  264,  M.  260 ;  U.  S.  v.  Hewson,  7  Boston  Law  Keptr.  361  (U.  S. 
C.  Ct.),  Fed.  Cas.  No.  15,360,  Story,  J. 

6  Par-sons  v.  S.,  81  Ala.  577,  2  So.  854;  P.  v.  Bell,  49  Cal.  485  ;  S.  v. 
Johnson,  40  Conn.  136  ;  Willis  v.  P.,  5  Parker  C.  C.  (N.  Y.)  621;  see 
also  a  very  vigorous  article  upon  the  subject,  7  Alb.  Law  Jour.  273. 
Upon  the  general  subject  of  insanity  as  a  defence,  see  C.  v.  Rogers,  1  Lead. 
Cr.  Cas.  94,  and  note. 

'  The  French  call  it  "moral  self-perversion." 


Sect.  43.]  GENERAL  PRINCIPLES.  47 

criminal  direction,  as  distinguished  from  mental  insanity, 
though  appearing  to  have  the  sanction  of  the  medical  faculty 
as  a  doctrine  founded  in  reason  and  the  nature  of  things,  is 
scouted  by  many  of  the  most  respectable  courts  as  unfounded 
in  law ;  ^  and  although  accepted  to  a  limited  extent  by  others, 
it  is  treated  even  by  them  as  a  doctrine  dangerous  in  all  its 
relations,  and  to  be  received  only  in  the  clearest  cases.^  It 
may  also  be  observed,  that  moral  insanity  is  sometimes  con- 
founded with,  and  sometimes  distinguished  from,  irresistible 
impulse.  In  Pennsylvania,  for  instance,  very  recently,  the 
existence  of  such  a  kind  of  insanity  seems  to  have  been  recog- 
nized ;  but  it  was  said  to  bear  a  striking  resemblance  to  vice, 
and  ought  never  to  be  admitted  as  a  defence  without  proof 
that  the  inclination  to  kill  is  irresistible,  and  that  it  does  not 
proceed  from  anger  or  other  evil  passion.^  Hence  many  cases 
appear  to  be  in  conflict  which  in  fact  are  not  irreconcilable. 
The  absence  of  clear  definitions  is  a  serious  embarrassment  in 
the  discussion  of  the  subject. 

The  fundamental  question  with  which  the  court  is  concerned 
in  these  cases  is  not  the  sanity  or  insanity  of  the  defendant, 
per  se.  That  is  material  only  in  so  far  as  it  bears  on  the  only 
point  with  which  the  court  is  concerned,  viz.,  his  punishability. 
With  this  idea  in  mind,  the  courts  of  some  States  have  given 
up  attempting  to  lay  down  any  fixed  rule  as  to  sanity  and 
have  instructed  the  jury  that  the  question  for  their  decision 
is  whether  or  not  the  defendant  was  in  a  criminally  responsible 
state  of  mind  at  the  time  he  did  the  act  complained  of.  This 
practice,  though  apparently  leaving  greater  scope  to  the  jury, 
seems  correct  on  principle,  and  makes  for  simplification  of  the 
doctrines  on  this  subject.^ 

1  P.  V.  McDonell,  47  Cal.  134;  Anderson  v.  S.,  43  Conn.  514;  Choice 
V.  S.,  31  Ga.  424;  Humphreys  v.  S.,  45  Ga.  IDO;  S.  v.  Lawrence,  57  i\Ie. 
574;  S.  V.  Brandon,  8  Jones  (N.  C),  4G3;  Farrer  v.  S.,  2  O.  St.  54; 
U.  S.  IT.  Holmes,  1  Cliff.  (U.  S.  C.  Ct.)  98,  Fed.  Cas.  No.  1.5,382;  and 
cases  before  cited  on  the  general  topic,  ante,  §  39.  See  also  Wharton  on 
Homicide,  §  583. 

2  See  Wharton  on  Homicide,  §§  583  et  seq. 

3  C.  V.  Sayre  (Pa.),  5  Weekly  Notes  of  Cas.  424. 

*  Parsons  v.  S.,  81  Ala.  577,  2  So.  854;  S.  v.  Pike,  49  N.  H.  399 ;  S.  v. 


48  CRIMINAL   LAW.  [Sects.  44,45. 

§  41.  Insanity  at  Time  of  Trial.  —  An  offender  cannot  be 
tried,  sentenced,  or  punished  for  crime  while  insane.  The 
test  of  insanity  is,  however,  different  in  this  case  from  the 
test  in  the  ordinary  case.  Insanity  wliich  prevents  a  trial  is 
not  inability  to  distinguish  right  from  wrong,  but  mental 
incapacity  to  make  a  rational  defence,  or  to  understand  the 
meaning  of  punishment.^ 

§  45.  Proof  of  Insanity.  —  As  a  question  of  evidence,  the 
burden  of  proof  of  sanity  is  upon  the  government  in  all  cases. 
The  act  must  not  only  be  proved,  but  it  must  also  be  proved 
that  it  is  the  voluntary  act  of  an  intelligent  person.  Where 
the  will  does  not  co-operate,  there  is  no  intent.  But  as  sanity 
is  the  normal  state  of  the  human  mind,  the  law  presumes 
every  one  sane  till  the  contrary  is  shown ;  and  this  presump- 
tion, in  the  absence  of  evidence  to  the  contrary,  is  sufficient 
to  sustain  this  burden  of  proof.  If,  however,  the  defendant 
can,  by  the  introduction  of  evidence,  raise  a  reasonable  doubt 
upon  the  question  of  sanity,  he  is  to  be  acquitted.  -This  is 
the  better  rule,  supported  by  many  authorities.^ 

In  other  of  the  States,  however,  it  is  held  that,  if  the  prisoner 
sets  up  insanity  in  defence,  he  must  prove  it  by  a  preponder- 
ance of  evidence,  or  it  is  of  no  avail.  It  is  not  enough  for 
him  to  raise  a  reasonable  doubt  on  the  point.^  In  New  York, 
the  authorities  seem  to  be  conflicting.* 

Jones,  50  N.  H.  369,  M.  275.     See  also  P.  v.  Finley,  38  Mich.  482;  S.  v. 
Keerl  (Mont.),  75  F.  362. 

1  Freeman  u.  P.,  4  Denio  (N".  Y.),  9. 

2  S.  V.  Johnson,  40  Conn.  136;  Davis  v.  S.,  44  Fla.  32,  32  So.  822  ;  Chase 
V.  P.,  40  111.  352;  Dacey  v.  P.,  116  111.  655,  6  N.  E.  165;  Polk  v.  S.,  19  Ind. 
170;  Plake  v.  S.,  121  Ind.  433,  23  N.  E.  273  ;  S.  v.  Crawford,  11  Kan.  32, 
32  Am.  Law  Reg.  n.  s.  21,  and  note;  C.  v.  Pomeroy,  117  Mass.  143;  P.  v. 
Garbutt,  17  Mich.  9;  Cunningham  v.  S.,  56  Miss.  269,  M.  306;  Wright 
V.  P.,  4  Neb.  407;  Burgo  v.  S.,  26  Neb.  639,  42  N.  W.  701;  S.  v.  Jones, 
50  N.  H.  369  ;  Faulkner  v.  Terr.,  6  N.  Mex.  464,  30  P.  905 ;  P.  v.  Tobin, 
176  N.  Y.  278,  68  N.  E.  359;  Maas  (;.  Terr  ,  10  Okl.  714,  63  P.  960  ;  Dove 
V.  S.,  3  Hei.sk.  (Tenn.)  348  ;  Pvevoir  v.  S.,  82  Wis.  295,  52  N.  W.  84  ;  Davis 
V.  U.  S.,  160  U.  S.  469,  with  large  collection  of  cases. 

3  Gunter  i;.  S.,  83  Ala.  96,  3  So.  600;    Casat  v.  S.,  40  Ark.  511  ;  P.  v. 

4  Wagner  v.  P.,  4  Abb.  App.  (N.  Y.)  509  ;  P.  v.  McCann,  16  N.  Y. 
58  (semhie) ;  Flannagan  v.  P.,  52  N.  Y.  467 ;  P.  v.  Tobin,  176  N.  Y.  278, 
68  N.  E.  359. 


Sect.  46.]  GENERAL  PRINCIPLES.  49 

In  New  Jersey,  it  seems  to  be  the  law  that  the  prisoner 
must  prove  the  defence  of  insanity  beyond  a  reasonable  doubt.^ 
So  also  in  Louisiana,^  and,  by  statute,  in  Oregon.^ 

§  46.  Voluntary  Drunkenness,  as  a  rule,  is  not  regarded  by 
the  law  as  an  e.\;cuse  for  the  commission  of  a  crime  while 
under  its  influence,  since  one  who  under  such  circumstances 
perpetrates  a  ci'ime  is  deemed  to  have  procured,  or  at  least 
consented  to,  that  condition  of  things  by  which  the  com- 
mission of  the  crime  became  more  probable.  Although 
intoxication,  according  to  its  degree,  may  cloud  or  eventually 
obscure  the  reason  for  the  time  being,  and  excite  the  passions  of 
man,  if  it  be  the  result  of  voluntary  and  temporary  indulgence, 
it  cannot  be  regarded  either  in  excuse,  justification,  or  ex- 
tenuation of  a  criminal  act.  If  privately  indulged  in,  it  may 
not  be  a  crime  in  itself.  It  is  nevertheless  so  far  wrongful  as  to 
impart  its  tortious  character  to  the  act  which  grows  out  of  it.^ 
It  was  said  by  Coke,^  and  has  been  sometimes  repeated  by 
text-writers  since,  that  the  fact  of  intoxication  adds  aggrava- 
tion to  the  crime  committed  under  its  influence ;  but  this 
seems  not  to  have  the  authority  of  any  well-adjudged  case, 
nor  to  be  well  founded  in  reason.  It  cannot,  for  instance, 
aggravate  an  offence,  which  in  law  is  only  manslaughter   if 

Best,  39  Cal.  690;  P.  ;;.  Bemmerly,  98  Cal.  299,  33  P.  263;  Lee  v.  S., 
116  Ga.  563,  42  S.  E.  759  ;  P.  v.  Walter,  1  Ida.  386;  S.  v.  Felter,  32  la. 
49;  S.  V.  Thiele,  119  la.  659,  94  N.  W.  256;  S.  v.  Coleman,  27  La.  Ann. 
691;  S.  y.  Lawrence,  57  Me.  574;  Bonfanti  r.  S.,  2  Minn.  123;  S.  v. 
Hanley,  34  Minn.  430,  26  N.  W.  397;  S.  v.  Hating,  21  Mo.  464;  S.  v. 
Palmer,  161  Mo.  152,  61  S.  W.  651;  S.  v.  Lewis,  20  Nev.  333,  22  P. 
241  ;  S.  V.  Potts,  100  N.  C.  457,  6  S.  E.  6.57;  Loeffner  v.  S.,  10  O.  St. 
598;  Lynch  v.  C,  77  Pa.  205;  S.  v.  Bundy,  '24  S.  C.  439  ;  Burt  v.  S  , 
38  Tex.  Cr  R.  397,  40  S.  W.  1003;  P.  v.  Dillon,  8  Utah  92,  30  P. 
150;  Boswell  v.  C,  20  Grat.  (Va.)  860;  S.  v.  Strauder,  11  W.  Ya.  745, 
823. 

1  S.  ;;.  Spenser,  1  Zab.  (21  N.  J.  L.)  202. 

2  S.  r.  De  Ranee,  34  La.  Ann.  186,  M.  302. 
8  S.  V.  Murray,  11  Or.  413,  5  P.  5.5. 

4  Beverley's  Case,  4  Co.  123  b,  125a;  P.  v.  Lewis,  36  Cal.  531;  Raf- 
ferty  <;.  P.,  66  111.  118;  C.  v.  Hawkins,  3  Gray  (Mass.),  463;  P.  v.  Garbutt, 
17  Mich.  9;  Flanigan  v.  P.,  86  X.  Y.  554. 

6  Coke  Litt.  247. 

4 


50  CRIMINAL   LAW.  [Sect.  47. 

committed  by  a  sober  man,  into  murder  if  done  by  a  drunken 
one;  nor  generally  lift  a  minor  offence  into  the  category  of  a 
higher  grade.  If  intoxication  be  a  crime,  it  may  be  punished 
distinctively  ;  but  the  punishment  of  intoxication  should  not 
be  added  to  that  of  the  crime  committed  under  its  influence. 
If  this  were  permissible,  greater  responsibility  would  attach 
to  the  intoxicated  than  to  the  sober  man,  in  respect  of  the 
particular  offence.^ 

I  47.  Intoxication.  Specific  Intent.  —  When,  however,  in 
the  course  of  a  trial,  a  question  arises  as  to  the  particular 
state  of  mind  of  the  accused  at  the  time  when  he  committed 
a  crime,  —  as,  for  instance,  whether  he  entertained  a  specific 
intent,  or  had  express  malice,  or  was  acting  with  deliberation, 
—  the  fact  of  intoxication  becomes  an  admissible  clement  to 
aid  in  its  determination  ;  not  as  an  excuse  for  the  crime,  but 
as  a  means  of  determining  its  degree.  If  a  man  be  so  drunk 
as  not  to  know  what  he  is  doing,  he  is  incapable  of  forming 
any  specific  intent.^  Thus  where  the  common  law  crime  of 
murder,  i.  e.,  killing  with  malice  aforethought,  has  been  divided 
by  statute  into  murder  in  the  first  degree,  i.  e.,  killing  with 
deliberate,  premeditated  malice  aforethought,  and  other  mur- 
der, proof  of  drunkenness,  by  showing  that  the  defendant  was 
too  intoxicated  to  form  the  intent  to  kill,^  or  that  he  acted  on 
sudden,  though  unreasonable,  passion,^  may  reduce  murder 
from  the  first  to  the  second  degree;^  or  may  show  such  ab- 
sence of  intent  as  to  justify  acquittal  on  a  charge  of  attempt 

1  McTntyre  v.  P.,  38  111.  514. 

2  Whitten  V.  S.,  115  Ala.  72,  22  So.  483,  M.  326;  S.  v.  Johnson,  40 
Conn.  13Q;  Malone  v.  S.,  49  Ga.  210;  Mclntyre  v.  P.,  38  111.  514;  S.  v. 
Bell,  29  la.  316,  K.  55 ;  S.  v.  Roan,  122  la.  136,  97  N.  W.  997 ;  Roberts 
V.  P.,  19  Mich.  401  ;  S.  v.  Garvey,  11  Minn.  151;  Schlencher  v.  S.  (Xeb.), 
8  Reptr.  207;  P.  v.  Robinson,  2  Park.  C.  C.  (N.  Y.)  235;  Jones  v.  C,  75 
Pa.  403. 

3  Reg.  V.  Doherty,  16  Cox  C.  C.  306,  C.  187;  P.  v.  Williams,  43  Cal. 
314;  S.  V.  Johnson,  40  Conn.  136;  Jones  v.  C,  75  Pa.  403. 

4  Rex  .;.  Thomas,  7  C.  &  P.  817,  M.  311 ;  Cartwright  v.  S.,  8  Lea 
(Tenn.),  376. 

5  Longiey  v.  C,  99  Va.  807,  37  S.  E.  339;  Ilopt  v.  P.,  104  U.  S.  631, 
C.78. 


Sect.  47a.]  GENERAL   PRINCIPLES.  51 

to  kill,^  bui-glaiy,2  forgery ,-5  larceii}-,*  assault  with  intent  to 
kill/  or  other  crime  involving  a  specific  intent. 

But  it  must  be  remembered  that  to  show  intoxication  in 
this  connection  is  merely  to  introduce  evidence  as  to  tlie  de- 
fendant's frame  of  mind.  If,  in  spite  of  his  intoxication,  he 
was  actuated  by  malice,  lie  will  be  held  for  murder.**  So,  if  in 
spite  of  his  intoxication,  he  consciously  made  use  of  a  weapon 
dangerous  to  life,  the  presumption  that  a  man  intends  the 
natural  and  probable  consequences  of  his  act  is  as  applicable 
to  the  -drunken  as  to  the  sober  man ;  and  the  capacity  to  form 
the  intent  to  shoot  with  a  deadly  weapon  im])lies  the  capacity 
to  form  the  intent  to  kill.'^ 

If  a  person,  having  formed  the  intention  to  kill  another, 
drink  in  order  to  nerve  himself  for  the  deed,  the  fact  of  his 
intoxication  will  not  reduce  the  crime,  the  original  malice 
being  taken  to  continue.^ 

§  41a.  An  analogous  question  arises  when  the  plea  of  self-de- 
fence is  set  up.  Here,  too,  the  defendant  may  show  he  was  intox- 
icated, not  to  excuse  his  crime,  but  to  show  the  good  faith  of  his 
action.^  But  where  the  exercise  of  self-defence  leads  to  a  homi- 
cide, as  distinguished  from  battery,  since  the  rule  is  that  the  de- 
fendant must  justify  his  conduct  by  showing  that  he  acted  not 
only  in  good  faith  but  reasonably,  his  intoxication  cannot  be 
taken  into  account.^*^     So  where  the  killing  was  in  hot  blood. ^^ 

1  Reg.  V.  Doody,  6  Cox  C.  C.  4(1-3,  C.  79. 

2  S.  V.  Snow,  3'Penue.  (Del.)  259,  51  Atl.  607;  S.  v.  Bell,  29  la.  316. 

8  P.  V.  Blake,  65  Cal.  275,  4  P.  1.  *  P.  v.  Walker,  38  Mich.  15(3. 
•■^'S.  V.  Di  Gugliehno,  4  Penne.  (Del.)  336,  .55  Atl.  3.50;  S.  v.   Pasnau, 

118  la.  501,  92  X.  W.  6S2 ;  Robeics  v.  P.,  19  Mich.  401.  See  Booher  v. 
S.,  156  Iiid.  43.5,  60  X.  E.  1.56. 

6  C.  V.  Dadash,  201  Pa.  121,  53  Atl.  756. 

In  Wilson  v.  S.,  60  X.  J.  L.  171,  37  Atl.  9.54,  it  was  said  that  to  excuse 
the  defendant  it  must  appear  not  only  that  he  did  not,  but  could  not,  be- 
cause of  intoxication,  have  any  intent.     But  see  s.  c.  38  Atl.  428. 

"  Marshall  v.  S.,  59  Ga.  154.  s  s.  v.  Robinson,  20  W.  Ya.  713. 

9  Reg-,  i:  Gamlen,  1  F.  &  F.  90,  C.  79,  K.  54  ;  Marshall's  Case,  1  Lewiu 
C.  C.  76,  M.  311. 

10  Springfield  v.  S.,  96  Ala.  81,  11  So.  2.50  ;  S.  v.  Mullen,  14  La.  Ann. 
570;  S.  V.  Davis,  52  W.  Va.  224,  43  S.  E.  99. 

"  Rax  V.  Carroll,  7  C.  &  P.  145;  C.  v.  Hawkins,  3  Gray  (Mass.),  463, 


62  CRIMINxVL  LAW.  [Sects.  47i,  48. 

§  475.  The  Burden  of  Proof,  where  it  is  urged  that  drunk- 
enness changes  the  nature  of  the  crime,  by  showing  the 
lack  of  a  specific  intent,  would  seem  to  be  the  same  as  with 
insanity,  i.  e.,  the  prosecution  having  made  out  a  prima  facie 
case,  the  defendant  need  introduce  only  enough  evidence  to 
raise  a  reasonable  doubt  as  to  the  existence  of  the  specific 
intent ;  and  the  prosecution  must,  wlien  all  the  evidence  is  in, 
convince  the  jury  beyond  a  reasonable  doubt,  of  the  exist- 
ence of  all  the  elements  of  the  crime,  including  the  specific 
intent.^ 

§  48.  Delirium  Tremens.  Mental  Disease.  —  Delirium  tre- 
mens is  rather  a  result  of  intoxication  than  intoxication  itself, 
and  is  regarded  by  the  law  as  a  disease  of  the  mind,  —  a  tem- 
porary insanity.  This,  like  any  other  mental  disease  induced 
by  long  and  excessive  indulgence,  which  impairs  the  mind  or 
controls  its  operations  to  such  an  extent  that  the  person 
afflicted  cannot  distinguish  right  from  wrong,  and  has  not  the 
capacity  to  know  what  he  does,  may  relieve  from  responsi- 
bility. Though  one  may  voluntarily  and  of  purpose  become 
intoxicated,  and  so  be  held  responsible  for  the  natural  conse- 
quences of  the  condition  which  he  has  sought,  ho  does  not 
intend  to  become  delirious  or  demented.^ 

If  the  defendant,  by  long  indulgence,  or  for  other  reasons, 
has  reached  such  a  condition  that  he  is  irresistibly  driven  to 
drink,  or  is,  as  it  is  sometimes  called,  a  subject  of  dipsomania 
or  oinomania,  it  would  seem  that  he  should  be  no  more  respon- 
sil.)le  for  a  crime  induced  by  the  intoxication  to  which  he  is 
thus  irresistibly  driven  than  should  an  insane  person  subject 

C.  79 ;  Keenau  v.  C,  44  Pa.  55,  M.  312;  Haile  v.  S.,  11  Humph.  (Teiui.) 
154. 

1  Whitten  V.  S.,  115  Ala.  72,  22  So.  483,  M.  320  ;  Davis  v.  S.,  51  Neb. 
177,  74  N.  W.  599  (semhle)  ;  contra,  S.  v.  Kavaiiaugh,  4  Penue.  (Del.)  131, 
53  Atl.  335;  S  v.  Hill,  46  La.  Ann.,  27,  14  So.  294 ;  S.  v.  Grear,  29  Minn. 
221,  13  N.  W.  140. 

2  Reg.  V.  Davis,  14  Cox  C.  C.  563,  C.  81;  Beasley  v.  S.,  50  Ala.  140  ;  P. 
V.  Williams,  43  Cal.  344;  S.  v.  McGonigal,  5  Harr.  (Del.)  510;  Macon- 
iiehey  v.  S.,  5  O.  St.  77;  Coniwell  v.  S.,  1  M.  &  Y.  (Tenn.)  147;  U.  S. 
r.  Drew,  5  ^lason  (U.  S.  C.  Ct.),  2S,  Fed.  Cas.  No.  14,993.  Compare 
S.  v.  Ilaab,  105  La.  230,  29  So.  725,  M.  320. 


Sects.  49,  50.]  GENERAL  PRINCIPLES.  o3 

to  an  irresistible  impulse.^  In  some  cases,  however,  the 
courts  have  refused  to  recognize  this  as  a  defence.^ 

§  49.  Involuntary  Intoxication,  or  that  which  is  induced  by 
the  fraud  or  mistalve  of  another,  —  as  when  one  is  deceived 
into  drinking  an  intoxicating  beverage  against  his  will,  or  by 
the  advice  of  his  pliysician  drinks  for  another  purpose, — 
constitutes  a  valid  excuse  for  crime  committed  while  under 
its  influence.  So,  doubtless,  would  one  be  held  excusable 
who,  without  negligence,  and  with  the  intent  to  benefit  his 
liealth  or  alleviate  pain,  and  not  merely  to  gratify  his  appetite, 
had,  through  liis  misjudgment  or  mistake,  drunk  more  than 
he  intended,  or  than  was  necessar}',  to  the  extent  of  intoxica- 
tion. In  the  absence  of  intent  either  to  commit  crime  or 
to  become  intoxicated,  the  essential  criterion  of  crime  is 
wanting.^ 

But  one  cannot  plead  over-susceptibility  as  an  excuse  for 
the  excessive  indulgence  of  his  appetite.  And  that  degree 
of  indulgence  is  in  him  excessive  which  produces  intoxication, 
thougli  the  same  amount  of  indulgence  would  not  ordinarily 
produce  intoxication  in  others.  Voluntary  indulgence  carries 
Avith  it  responsibility  for  the  consequences.* 

§50.  Ignorance  or  Mistake  of  Fact. — Ignorance  or  mistake 
of  fact  may  prevent  responsibility  for  a  common  law  crime. 
If  the  offender  acted  under  a  bona  fide  belief  in  a  state  of  facts 
different  from  what  actually  existed,  he  is  to  be  lield  respon- 
sible only  for  the  act  he  supposed  he  was  doing;  unless  that 
would  have  been  criminal,  he  is  not  guilty  of  a  crime.  Thus 
where  one  was  aroused  at  night  by  a  cry  of  "  Thieves ! "  and 
killed  a  servant,  honestly  and  reasonably  believing  him  to  be 
a  burglar,  he  was  held  not  guilty  of  homicide.^  So  where  a 
police  officer,  charged  with  the  duty  of  arresting  intoxicated 

1  Ante,  §  41. 

2  Choice  V.  S.,  31  Ga.  124 ;  Flanigan  v.  P.,  86  N.  Y.  .554,  M.  316. 
8  1  Hale  P.  C.  32 ;  Pearson's  Case,  2  Lew.  C.  C.  144,  C.  77. 

4  Humphreys  v.  S.,  45  Ga.  190. 

5  Levet's  Case,  1  Hale  P.  C.  42,  C.  85,  K.  26;  Sherras  v.  De  Pvutzen, 
L.  R.  1  Q.  B.  D.  918,  K.  32  ;  S.  v.  Nash,  88  N.  C.  618,  M.  248.  Compare 
S.  V.  Downs,  91  Mo.  19,  3  S.  W.  219 ;  and  see,  post,  §§  214,  235. 


54  CRIMINAL  LAW.  [Sects.  51, 52. 

persons,  arrests  a  sober  person,  he  is  not  criminally  liable  if 
he  acted  in  good  faith  and  reasonably. ^ 

§  51.  Ignorance  of  Law.  —  Knowledge  of  the  criminal  law 
on  the  part  of  every  person  cnpax  doli  within  its  jurisdiction 
is  conclusively  presumed,  upon  grounds  essential  to  the  main- 
tenance of  public  order.  This  fact,  therefore,  is  always  taken 
for  granted.  Ignorance  of  the  law  excuses  no  one.  And  this 
principle  is  so  absolute  and  universal,  that  a  foreigner  recently 
arrived,  and  in  point  of  fact  not  cognizant  of  tlie  law,  is 
affected  by  it.^  So  where  an  embargo  act  was  passed,  at  once 
becoming  operative,  a  vessel  leaving  a  port  in  a  remote  part 
of  the  country  so  soon  after  the  passage  of  the  act  that  it  was 
physically  impossible  to  have  learned  thereof,  was  held  never- 
theless liable.^  To  avoid  such  unjust  results  it  is  generally 
provided  in  statutes  that  they  shall  become  operative  at  some 
future  date.  In  the  lack  of  such  provision,  however,  the 
general  principle  is  clear.  It  rests  upon  considerations  of 
public  policy,  the  chief  of  which  is  that  the  efficient  adminis- 
tration of  justice  would  become  impracticable,  were  the  gov- 
ernment obliged  to  prove  in  every  case  that  the  defendant 
actually  had  knowledge  of  the  law.^ 

§  52.  Same  Subject.  Specific  Intent.  —  There  are  cases, 
however,  when  there  is  doubt  as  to  the  interpretation  of  the 
law,  in  which  it  has  been  held  that  acting  under  a  mistaken 
opinion  as  to  its  purport  may  be  an  excuse.  Thus,  it  is  said 
that  when  the  act  done  is  malum  in  se,  or  when  the  law  which 
has  been  infringed  is  settled  and  plain,  the  maxim,  Ignorantia 
legis  neminem  excusat,  will  be  applied  in  its  rigor;  but  when 
the  law  is  not  settled,  or  is  obscure,  and  when  the  guilty 
intention,  being  a  necessary  constituent  of  the  particular 
offence,  is  dependent  on  a  knowledge  of  the  law,  or  of  its 
existence,  —  as  where  one  takes  property  believed  to  be  his 
own  under  a  claim  of  right,  in  ignorance  of  the  existence  of 

1  C.  1-.  Presby,  14  Gray  (Mass.),  65,  K.  13,  M.  244;  C.  v.  Cheney,  141 
I^Iass.  102,  6  X.  E.  724.     See  also  S.  v.  McDonald,  7  Mo.  App.  .510. 

2  Ex  parte  Barroiiet,  1  E.  &  B.  1 ;  Rex  v.  Esop,  7  C.  &  P.  456. 
8  Brig.  Ann,  1  Gall.  62,  Fed.  Cas.  No.  397. 

*  See  S.  c.  Butts,  3  S.  D.  577,  54  N.  W.  603. 


Sect.  52.J  GENERAL   PRIXCIPLES.  55 

a  law  which  rests  the  property  in  another,^  or  takes  illegal 
fees,2  or  illegally  votes,^  under  a  mistake  as  to  the  meaning 
of  the  law, —  this  rule,  if  enforced,  would  be  misapplied. 

The  doctrine  as  thus  stated  by  the  courts  seems  to  involve 
two  distinct  questions:  first,  the  relation  between  specific 
intent  and  ignorance  of  law  ;  and,  second,  the  construction 
to  be  put  on  any  given  law,  as  to  whether  specific  intent  is 
meant  to  be  made  an  element  of  the  act  thereby  forbidden. 
As  to  the  first  question,  as  has  already  been  pointed  out,*  if 
the  purpose  of  the  law,  wdiether  common  law  or  statute,  is  to 
punish  the  intentional  doing  of  the  forbidden  act  without 
the  farther  element  that  we  call  specific  intent,  then  ignorance 
of  the  law  is  no  excuse.  With  the  common  law  offences  there 
can  be  little  doubt  on  the  question  whether  or  not,  in  any 
case,  a  specific  intent  is  an  essential  element  in  the  crime. 
The  same  principle,  of  course,  applies  to  statutory  crimes. 
If  the  purpose  of  the  statute  is  to  punish  simply  the  inten- 
tional doing  of  the  act,^  it  is  immaterial  that  the  defendant 
acted  through  ignorance  of  the  law,  as  in  cases  where  the 
statute,  irrespective  of  any  specific  intent,  forbids  voting  in 
more  than  one  town  for  the  same  officer,^  or  removing  a  dead 
body,'  or  miscegenation.^  It  being  settled  that  such  is  the 
law,  it  would  seem  clear  as  a  matter  of  principle  that  the  fact 
that  the  law  was  obscure,^  or  that  the  defendant  acted  on  legal 

1  Rex  r.  Hall,  3  C.  &  P.  409,  C.  84  ;  Reg.  v.  Reed,  C.  &  M.  306 ;  C. 
V.  Stebbins,    8  Gray  (Mass.),  492,  C.  83. 

2  Cutler  V.  S.,  36  N.  J.  L.  12.5,  M.  241;  Halstead  v.  S.,  41  N.  J.  L. 
552  ;  P.  V.  Whalley,  6  Cow.  (N.  Y.)  661. 

3  C.  V.  Bradford,  9  Met.  (Mass.)  268;  S.  v.  Macomber,  7  R.  I.  349. 

4  Ante,  §  51. 

5  On  the  question  of  what  statutes  are  interpreted  as  punishing  the 
act  regardless  of  any  intent,  see  post,  §§  53-58. 

«  S.  V.  Perkins,  42  Vt.  399. 

T  S.  t'.  McLean,  121  N.  C.  589,  28  S.  E.  140. 

8  Hoover  v.  S.,  59  Ala.  57.  See  also  Fraser  v.  S.,  112  Ga.  13,  37  S.  E. 
114;  S.  V.  Keller  (Ida.),  70  P.  1051;  Jellico  Coal  Co.  v.  C,  96  Ky.  373, 
29  S.  W.  26;  Begley  e.  C,  22  Ky.  L.  R.  1546,  60  S.  W.  847;  C.  v.  Ever- 
son,  140  Mass.  292,  2  N.  E.  839 ;  Debardeleben  v.  S.,  99  Tenn.  619,  42 
S.  W.  684. 

9  Levar  v.  S.,  103  Ga.  42,  29  S.  E.  467. 


56  CRIMINAL  LAW.  [Sect.  52. 

advice,!  while  it  might  be  a  ground  for  mitigating  the  sen- 
tence, could  not  affect  his  criminal  responsibility. 

If,  on  the  other  hand',  the  statute  expressly  requires,  in 
order  to  render  an  act  punishable,  that  it  should  be  done  "  mali- 
ciously," or  "  corruptly,"  or  with  any  other  specific  intent,  it 
is  equally  clear  that  if,  from  ignorance  of  law,  or  any  other 
reason,  that  specific  intent  does  not  exist,  there  is  lacking  one 
of  the  elements  of  the  crime.  Whenever,  therefore,  a  special 
mental  condition  constitutes  a  part  of  the  offence  charged,  and 
such  condition  depends  on  the  fact  whether  the  party  charged 
had  certain  knowledge  with  respect  to  matters  of  law,  the  fact 
of  the  existence  of  such  knowledge  is  open  to  inquiry.  Thus, 
in  a  prosecution  for  maliciously  setting  fire  to  furze,  proof  of 
a  mistaken  belief  in  the  offender's  right  to  burn  the  furze  is 
admissible,  since  it  disproves  malice.^ 

The  second  question,  viz.,  whether  in  fact  specific  intent  is, 
in  any  given  case,  made  a  part  of  the  crime  is  not  always  thus 
specifically  answered  by  the  statute.  While  there  is  some 
conflict  of  authority,  it  would  seem  that  as  a  matter  of  prin- 
ciple the  court  may  conclude  from  the  nature  of  the  evil  sought 
to  be  remedied,  andotlier  reasons,  that  it  was  the  intent  of  the 
legislature  to  make  the  act  punishable  only  if  done  from  cor- 
rupt motives.  Thus,  where  the  mere  words  of  the  statute  for- 
bade the  taking  of  fees  not  allowed  by  law,  or  voting,  when  not 
legally  entitled  to  do  so,  the  court  held  that  the  intent  was  to 
punish  these  acts  only  when  done  with  a  corrupt  motive  and 
that  the  defendant's  ignorance  of  the  law  might  be  shown  in 
explanation  of  his  conduct.^  Some  courts,  however,  have  said 
that  where  the  statute  forbids  '•  fraudulent  and  wilful "  acts, 
the  mere  fact  that  they  are  done  intentionally  and  with  (con- 

1  S.  V.  Marsh,  36  N.  H.  196  ;  S.  v.  Foster,  22  R.  I.  163,  46  Atl.  833. 

2  Reg.  V.  Towse,  11  Cox  C.  C.  327,  C.  81  ;  Goforth  v.  S.,  8  Humph. 
(Tenn.)  37;  Dye  v.  C,  7  Grat.  (Va.)  662;  U.  S.  o.  Conner,  3  McLean 
573,  Fed.  Cas.  No.  14,847. 

8  Leeinan  v.  S.,  35  Ark.  438 ;  C.  r.  Shed,  1  ^Lass.  227  ;  C  r.  Bradford, 
9  Met.  (Mass.)  268 ;  S.  v.  Gardner,  5  Xev.  377;  Cutter  v.  S.,  36  N.  J.  L. 
125,  :\I.  241  ;  P.  V.  Whaley,  6  Cow.  (N.  Y.)  661 ;  contra,  S.  v.  Welch, 
73  Mo.  284.  As  to  acts  done  under  an  unconstitutional  statute,  see  S.  v. 
Godwin,  123  N.  C.  G07,  31  S.  E.  221. 


Sect.  53.]  GENERAL  PRINCIPLES.  57 

striictivc)  knowledge  that  the  law  forbids  it,  is  in  itself  suffi- 
cient to  make  it  wilful,  and  hence  fraudulent.^  This  reason- 
ing would  seem  inconsistent  with  the  principles  and  cases 
discussed  above. 

IXTEXT  IX  STATUTORY  CRIMES. 

§  53.  statute  May  Ignore  Intent.  —  Doubtless,  in  the  earlier 
history  of  the  common  law,  only  such  acts  were  deemed  crim- 
inal as  had  in  them  the  vicious  element  of  an  unlawful  intent, 
—  acts  which  were  mala  in  se,  and  indicated  some  degree  of 
moral  obliquity.  But  this  quality  has  long  since  ceased  to  be 
essential,  and  at  the  present  day  mala  prohibita  —  acts  made 
criminal  by  statute,  many  of  them  unobjectionable  in  a  moral 
aspect,  except  so  far  as  doing  an  act  prohibited  by  law  may 
be  deemed  immoral  —  constitute  no  inconsiderable  portion  of 
the  category  of  crimes. 

To  illustrate.  The  statute  prohibits  the  sale  of  adulterated 
milk.  A  person  who  sells  adulterated  milk  without  knowing 
it  to  be  adulterated,  or  even  honestly  believing  it  to  be  pure, 
is  nevertheless  guilty  of  a  crime.  There  are  many  acts  which 
the  law,  looking  to  the  protection  of  the  community,  seeks 
to  prevent ;  making  it  perilous,  by  making  it  criminally 
punishable,  to  do  them.  As  every  one  is  presumed  to 
know  the  law,  every  one  knows  that  the  sale  of  adulterated 
milk  is  prohibited.  No  one  is  bound  to  sell  milk  ;  but  if  he 
do,  he  is  bound  to  know  whether  it  is  adulterated  or  not ;  and 
if  he  intentionally  sell  milk  without  having  correctly  deter- 
mined beforehand,  as  it  is  in  his  power  to  do,  whether  it  is  or 
is  not  of  the  character  prohibited,  he  is  so  far  at  fault,  and  to 
that  extent  guilty  of  a  neglect  of  legal  duty.^  For  the 
same  reason,  the  sale  of  a  single  glass  of  intoxicating  liquor, 
even  for  a  praiseworthy  purpose,  may  or  may  not  be  criminal 
in  different  jurisdictions,  and  at  different  times  in  the  same 
jurisdiction,  according  as  the  legislature,  in  the  interest  of  the 

1  S.  V.  Dickens,  1  Hay.  (X.  C.)  406 ;  S.  v.  Boyett,  32  N.  C.  336,  M. 
238  ;  S.  V.  Hart,  51  N.  C.  389.  Compare  McGuire  v.  S.,  7  Humph.  (Tenu.) 
54,  and  see  post,  §§  53  to  58. 

2  C.  V.  Waite,  11  All.  (Mass.)  264. 


58  CRIMINAL  LAW.  [Sect.  54. 

public  good,  may  provide.  The  hardship  of  requiring  that  a 
person  shall  know  a  fact  is  no  greater  than  to  require  that  he 
shall  know  the  law.  In  other  words,  where  the  statute  clearly 
so  intends,  ignorance  of  a  fact  is  no  more  an  excuse  than  igno- 
rance of  law.  The  necessity  of  a  criminal  intent  may  be  done 
away  by  the  legislature,  and  the  criminal  act  be  made  the  sole 
element  of  a  crime.^ 

§  54.  Necessity  of  Intent  a  Question  of  Interpretation.  —  The 
question  becomes  therefore  one  of  interpretation  of  the  crimi- 
nal statute  ;  and  to  aid  us  in  this  work  we  have  the  principle 
that  a  statute,  other  things  being  equal,  is  to  be  interpreted  as 
a  modification,  not  as  a  repeal,  of  the  common  law.  On  the 
other  hand,  however,  the  legislature  has  an  undoubted  right 
to  make  the  commission  of  any  act,  even  without  criminal 
intent,  a  crime.  Several  theories  have  been  put  forward  as 
to  the  proper  interpretation  of  criminal  statutes.  According 
to  one  theory,  the  commission  of  any  act  forbidden  by  statute 
would  be  a  crime,  though  it  was  done  without  criminal  intent, 
unless  the  statute  required  sucli  intent.^  This  theory  is,  how- 
ever, usually  regarded  as  too  harsh.  Another  theory,  put  for- 
ward by  Brett,  J.,  in  Regina  v.  Prince,^  is  that  the  guilty 
intent  must  always  be  shown,  even  in  statutory  offences,  unless 
the  necessity  is  expressly  done  away  in  the  statute.  This 
theory  is  usually  regarded  as  too  narrow. 

1  Ex  parte  Barronet,  1  E.  &  B.  1;  Rex  v.  Bailey,  R.  &  R.  C.  C.  1,  K. 
29;  C.  V.  Boynton,  2  All.  (Mass.)  160.  Upon  the  general  subject,  see, 
in  addition  to  the  cases  already  cited,  Judge  Bennett's  note  to  Rex  v. 
Wheatly,  1  Lead.  Cr.  Cas.  1 ;  Queen  v.  Mayor,  &c.,  L.  R.  3  Q.  B.  629 ; 
Reg.  V.  Prince,  L.  R.  2  C.  C.  R.  154,  1  Am.  Cr.  Rep.  1,  K.  21,  M.  173; 
Steph.  Dig.  Cr.  L.,  art.  34;  Barnes  v.  S.,  19  Conn.  398;  McCutcheon  v. 
v.,  69  111.  601 ;  Ulrich  v.  C,  6  Bush  (Ky.),  400;  S.  v.  Goodenow,  65  Me.  30  ; 
S.  i:  Smith,  10  R.  I.  2.18;  Lawrence  v.  C,  30  Grat.  (Ya.)  845;  U.  S.  v. 
Anthony,  and  Mr.  Green's  note,  2  Cr.  L.  R.  215.  There  are  cases  to  the 
contrary  (Marshall  v.  S.,  40  Ala.  21  ;  Stern  v.  S.  53  Ga.  229;  Williams  y. 
S.,  48  Ind.  306  ;  Birney  r.  S.,  8  O.  230),  which  Mr.  Bishop  approves.  But 
by  the  settled  law  of  England,  and  the  great  weight  of  authority  in  this 
country,  the  doctrine  of  the  text  is  the  better  law.  See  12  Am.  Law  Rev. 
469. 

2  C.  V.  Mash,  7  Met.  (Mass.)  472,  C.  88. 
8  13  Cox  C.  C.  138,  L.  R.  2  C,  C.  154. 


Sects.  55,  56]  GENERAL  PRINCIPLES.  59 

The  true  theory  seems  to  he  between  these  two.  The  facts 
of  each  case  should  be  looked  at,  and  the  intention  of  the  leg- 
islature, as  applied  to  those  particular  facts,  should  be  deter- 
mined by  the  court.  This  can  be  done  by  a  consideration  of 
the  general  scope  of  the  act,  and  of  the  nature  of  the  evils  to 
be  avoided.^ 

§  55.  By-Laws  and  Police  Regulations.  —  In  accordance  with 
this  theory,  the  courts  almost  universally  hold  that  such  minor 
provisions  of  the  criminal  statutes  as  are  adopted  for  the  reg- 
ulation of  the  conduct  of  men  in  the  ordinary  affairs  of  life, 
such  as  city  by-laws  or  ordinances  and  police  regulations,  are 
to  be  interpreted  strictly,  and  infractions  of  them  punished, 
even  if  committed  without  guilty  intent.  For  instance,  it  has 
been  held  not  necessary  to  prove  a  guilty  intent  in  prosecutions 
for  wrongfully  selling  liquor,^  or  oleomargarine,^  for  selling 
adulterated  or  diseased  articles  of  food  or  drink,*  or  for  per- 
mitting a  minor  to  remain  in  a  billiard  saloon.^  So  an  infrac- 
tion of  the  building  laws  would  be  held  punishable,  though 
the  owner  of  the  building  was  ignorant  of  it.^  Upon  the  same 
principle,  one  may  be  convicted  on  an  indictment  for  receiving 
lunatics  into  his  house  without  a  license,  though  he  did  not 
know  them  to  be  lunatics.'' 

§  56.   Immoral  Acts. — When  the  offender  was  engaged  in 

1  2  Steph.  Hist.  Cr.  Law,  117;  Wills,  J.,  in  Reg.  v.  Tolson,  23  Q.  B.  D. 
168,  K.  15,  M.  178;  C.  v.  AVeiss,  139  Pa.  217,  21  Atl.  10,  M.  205. 

2  Barnes  v.  S.,  19  Conn.  398;  INIcCutcheon  v.  P.,  69  111.  601  ;  C.  v. 
Boynton,2  All.  (Mass.)  160;  C.  v.  Finnegan,  124  Mass.  324;  S.v.  Cain, 
9  W.  Ya.  559 ;  U.  S.  r.  Leathers,  6  Sawy.  (U.  S.  Circ.  Ct.)  17,  Fed.  Cas. 
No.  15,581.  See,  contra,  Williams  f.  S.,  48  Ind.  306;  P.  v.  Welch,  71 
Mich.  548,  39  N.  W.  747. 

3  C.  V.  Weiss,  139  Pa.  247,  21  Atl.  10,  M.  205;  S.  v.  Xewton,  50  N.  J. 
L.  534,  14  Atl.  604. 

*  S.  V.  Stanton,  37  Conn.  421,  U.  101;  C  v.  Farren,  9  All.  (Ma.ss.) 
489 ;  S.  V.  Smith,  10  R.  I.  258.  See,  contra,  Teague  v.  S.,  25  Tex.  App. 
577,  8  S.  W.  667. 

5  S.  V.  Kinkead,  57  Conn.  173,  17  Atl.  855 ;  S.  v.  Probasco,  62  la. 
400,  17  X.  W.  607.  See,  contra,  Marshall  v.  S.,  49  Ala.  21 ;  Stern  v.  S., 
53  Ga.  229,  M.  202. 

G  Wills,  J.,  in  Reg.  v.  Tolson,  23  Q.  B.  D.  168,  K.  15,  M.  178. 

T  Reg.  V.  Bishop,  14  Cox  C.  C.  404,  5  Q.  B.  D.  259,  C.  86. 


60  CRIMINAL  LAW.  [Sects.  57, 58. 

an  act  wbicli  is  in  itself  immoral,  but  is  made  criminal  by 
statute  only  under  certain  circumstances,  he  is  guilty  if  the 
circumstances  exist,  though  he  believed  they  did  not.  Thus, 
upon  an  indictment  for  unlawfully  taking  an  unmarried  girl 
under  the  age  of  sixteen  from  her  father's  possession,  a  bona 
■fide  belief  that  the  girl  was  over  sixteen  will  not  protect  the 
defendant,  the  act  itself  being  an  immoral  one.^ 

§  57.  Intent  in  Other  Cases  generally  Required.  —  Where  the 
act  forbidden  by  statute  is  not  in  its  nature  immoral,  and 
the  statute  is  more  than  a  mere  regulation  of  the  every-day 
business  of  life,  the  tendency  of  the  authorities  is  to  require  a 
criminal  intent,  unless  the  statute  expressly  does  away  with 
such  requirement.^  The  burden  of  producing  evidence  of  lack 
of  intent  is  of  course  on  the  accused,  since  intent  is  ordinarily 
inferred  from  the  act  itself ;  but  if  evidence  of  lack  of  intent 
is  introduced,  the  burden  of  proving  it  is  on  the  government. 
Thus,  upon  an  indictment  for  bigamy,  a  bona  fide  belief  upon 
reasonable  grounds  that  the  defendant's  wife  was  dead  at  the 
time  of  the  second  marriage  is  by  the  better  view  regarded  as 
entitling  the  defendant  to  acquittal.^ 

JUSTIFICATIOX    FOR    CRIME. 

§  58.  Matters  of  Justification.  —  Up  to  this  point  we  have 
been  considering  what  elements  were  sufficient  to  make  a 
complete  crime :  thus,  as  to  the  physical  act,  whether  it  was 
of  a  kind  to  injure  the  public;  whether  it  was  more 'than 
preparation ;  the  effect  of  contributing  acts  by  other  persons, 
etc.  ;^  and  as  to  the  criminal  state  of  mind,  under  wdiat  cir- 

1  Reg.  V.  Prince,  13  Cox  C.  C.  138,  L.  R.  2  C.  C.  1-54,  K.  21,  M. 
173  ;  S.  V.  Ruhl,  8  la.  447.     See  §  28,  ante. 

2  Reg.  V.  Tinkler,  1  F.  &  F.  513;  Anon.,  Foster  Cr.  L.  (3d  ed.)  439; 
Birney  v.  S.,  8  0.  230;  U.  S.  v.  Beaty,  Hempst.  (U.  S.  Circ.  Ct.)  487, 
Fed.  Cas.  No.  14,.555 ;  Lee  v.  Lacey,  1  Cr.  C.  C.  (D.  C.)  263,  Fed.  Cas. 
No,  8,193. 

8  Reg.  V.  Tolson,  23  Q.  B.  D.  168,  K.  1.5,  M.  178;  Squire  v.  S.,  46  Tnd, 
4.59,  C.  90.  See,  contra,  C.  v.  Mash,  7  Met.  (Mass.)  472,  C.  88 ;  post, 
§§  19.5,  196. 

*  See  §§  6  to  25  inclusive. 


Sect.  59.]  GENERAL  PRINCIPLES.  61 

cumstances  it  existed  ;  the  effect  thereon  of  insanity  ;  what 
amounts  to  criminal  negligence,  etc.^  But  though  an  act 
has  been  intentionally  committed,  which  is  in  its  nature 
punishable,  by  one  who  is  answerable  for  his  acts,  it  mav 
nevertheless  not  be  punishable  as  a  crime.  The  soldier  who 
intentionally  shoots  an  enemy,  the  sheriff  who  hangs  a  con- 
demned murderer  or  seizes  property  on  execution,  are  com- 
mitting acts  which  are  in  their  nature  criminal  ;  yet  tlie  act, 
so  far  from  being  punishable,  is  done  in  execution  of  a  public 
duty.  It  becomes  therefore  necessary  to  consider  under  what 
circumstances  a  man  may  be  excused  for  the  commission  of 
what  would  otherwise  be  a  crime.  It  will  he  found  that  these 
circumstances  are  comprehended  in  the  following  classes  : 
public  authority,  defence,  and  necessity. 

§  59.  Execution  or  Enforcement  of  Law.  —  Any  act  done  by 
an  officer  of  the  law  in  execution  of  a  writ  or  warrant  issued 
by  a  court  of  competent  jurisdiction  is  justifiable,  whether  it 
be  to  hang  or  imprison  a  man,  or  to  seize  his  property.  And 
even  a  private  person  is  justified  in  preventing  by  force,  even 
if  necessary  by  taking  life,  the  commission  of  treason,  or  of 
a  felony  by  the  use  or  the  threat  of  violence  ;2  or  in  arresting 
and  keeping  in  custody  sucli  a  traitor  or  felon,  or  even  in 
killing  him  if  necessary  to  prevent  his  escape. ^  Where  a 
person,  whether  a  private  citizen  or  an  officer,  is  rightfully 
engaged  in  making  an  arrest,  he  is  justified  in  using  whatever 
force  is  necessary  to  carry  out  the  law  ;  and  if  death  ensues 
it  is  justifiable  homicide:*  tliis  is  true  even  where  the  pei-son 
resisting  arrest  is  a  misdemeanant;^  the  death  is  inflicted,  not 
as  a  punishment  for  the  crime,  but  in  the  course  of  enforcing 

1  See  §§  26  to  57  inclusive. 

2  Foster  C.  L.  273  ;  1  East  P.  C.  271. 

3  1  East  P.  C.  2fl8. 

4  Rex  V.  Daunt,  1  Crawf.  &  D.  166  ;  S.  v.  Anderson,  1  Hill  (S.  C), 
327;  U.  S  V  Rice,  1  Hughes,  560,  Fed.  Cas.  No.  16,1.5.3,  M.  39i ;  U.  S. 
V.  Jailer,  2  Abb.  265,  Fed.  Cas.  No.  15,463  ;  S.  v.  Gosnell,  74  Fed.  734. 

5  Clements  v.  S.,  .50  Ala.  117  ;  Lynn  v.  P.,  170  Til.  .527,  48  N.  E.  964; 
S.  V.  Dierberger,  96  Mo.  666,  10  S.  W.  168;  S.  v.  (iarrett,  60  X.  C.  144  ; 
cotitra,  Smith  v.  S,  .59  Ark.  132,  26  S.  W.  712;  Stephens  v.  C.  (Ky.),  47 
S.  W.  229  ;  C.  V.  Rhoads,  23  Pa.  Supr.  Ct.  512. 


62  CRIMINAL  LAW.  [Sect.  GO. 

the  law.  Where,  however,  the  offender  does  not  forcibly 
resist  the  enforcement  of  the  law,  but  endeavors  to  make  his 
escape,  the  justilication  for  killing  no  longer  exists.  It  is 
generally  agreed  that  an  escaping  misdemeanant  cannot  be 
killed  even  though  there  be  no  other  way  to  make  the  arrest.^ 
As  to  escaping  felons,  it  is  sometimes  said  that  the  safety  of 
society  demands  that  they  bo  arrested  even  at  the  cost  of  their 
life.'-^  On  the  other  hand  it  has  been  said  that  it  is  only  active 
resistance  to  the  enforcement  of  the  law  that  justifies  a  killing.^ 

§  60.  Authorization  by  Government. — Every  man  is  justi- 
fied in  obeying  the  lawful  commands  of  the  government 
within  the  jurisdiction  of  which  he  is;  therefore  no  act  done 
in  pursuance  of  such  command  can  be  a  crime.  But  this 
justification  is  good  only  so  long  as  the  party  justifying  is 
within  the  territorial  jurisdiction  of  the  government.*  Thus 
the  master  of  an  English  vessel  may  justify  taking  a  man  on 
board  his  vessel  at  a  Chilean  port,  by  order  of  the  Clulean 
government ;  but  he  cannot  justify  any  restraint  put  upon  the 
man  after  leaving  Chilean  territory.^ 

A  soldier  is  bound  to  obey  only  the  legal  orders  of  his 
officers.  Hence  an  order  to  do  an  obviously  unjustifiable  act 
is  no  defence.  Since,  however,  the  soldier  must,  under 
severe  penalties,  obey  any  legal  order,  his  action  is  justified 
if  the  order  is  apparently  legal  and  not  to  do  an  act  clearly 
unjustifiable.^ 

1  Reg.  i:  Dadson,  4  Cox  C.  C.  358  ;  llandley  v.  S.,  96  Ala.  48,  11  So. 
322;  Brown  v.  Weaver,  76  Miss.  7,  23  So.  388;  Reneau  v.  S.,  2  Lea 
(Tenn.),  720;  contra,  S.  v.  Turlington,  102  Mo.  642,  15  S.  W.  141 
(statutory). 

2  Rex  V.  Finnerty,  1  Crawf.  &  D.  167,  note;  Carr  v.  S.,  43  Ark.  99; 
Head  v.  Martin,  85  Ky.  480,  3  S.  W.  622 ;  Jackson  r.  S.,  66  Miss.  89,  5 
So.  690;  S.  V.  Roane,  13  N.  C.  58.     Compare  S.  v.  Bryant,  65  X.  C.  327. 

8  Reg.  V.  IMurphy,  1  Crawf.  &  D.  20 ;  Storey  v.  S.,  71  Ala.  329. 

4  P.  V  McLeod,  1  Hill  (N.  Y.),  377. 

6  Reg.  V.  Leslie,  8  Cox  C.  C.  269,  C.  151. 

6  C.  V.  Blodgett,  12  Met.  (Mass.)  56;  C.  v.  Shortall,  206  Pa.  165,  .55 
Atl.  952;  U.  S.  v.  Jones,  3  Wash.  C.  C.  209,  Fed.  Cas.  No.  15,494;  U.  S. 
V.  Clark,  31  Fed.  710,  and  cases  there  cited ;  Re  Fair,  100  Fed.  149. 
Compare  Queen  v.  Stowe,  2  Nov.  Scot.  Dec.  121;  Reg.  v.  Hutchinson,  9 
Cox  C.  C.  555. 


Sects.  61,  62]  GENERAL  PRINCIPLES.  63 

§  61.   Public  Policy.  —  Certain  other  acts  may  no  doubt  be 
justified  upon  the  rather  vague  ground  of  public  policy.     Thus 
one  may  justify  the  destruction  of  public  property  in  time  of 
conflagration  or  pestilence,  or  the  forcible  entry  on  land  in  time 
of  hostile  invasion.!     gQ^  ^q  doubt,  it  would  be  justifiable  to 
disobey  a  police  regulation  which  forbade  all  persons  to  leave 
their  horses  unattended  in  the  public  street,  if  the  attendant 
left  the  horse  in  order  to  save  life.^     So  the  publication  of 
obscenity  is  in  some  cases  justifiable,  as  when  it  is  done  in 
good  faith  in  the  promotion  of  morality,  science,  or  art,  as, 
for  instance,  by  the  publication  of  a  medical  treatise  or  of  a 
literary  classic  ;^  and  public  officials  may  justify  the  burning 
of  plague-infected  clothing,  though  it  causes  such  discomfort 
in  the  neighborhood  as  amounts  to  a  public  nuisance,  if  it  is  a 
proper  and  reasonable  means  to  prevent  contagion.'^     Justifi- 
cation of  this  sort  has  seldom  been  set  up,  probably  because 
common  sense  usually  prevents  a  prosecution  in  such  a  case ; 
and  the  extent  to  whicli  courts  would  go  in  allowing  such  a 
defence  cannot  be  determined. 

S  62.  Authority  of  a  Parent  or  Master .°  —  Of  a  similar  nature 
is  the  right  of  a  parent  or  master  to  govern  and  correct  his 
child  or  apprentice.  Any  act  done  in  proper  correction  of  a 
son,  scholar,  or  apprentice  is  justifiable.  It  is  only  for  excess 
of  force,  or  for  causeless  and  cruel  punishment,  that  a  criminal 
prosecution  can  be  brought.^  The  same  principle  applies  to 
others  having  the  right  and  duty  to  exercise  control,  as  a 
school  teacher  or  keeper  of  a  poor  farm."  A  husband  has  no 
right  to  inflict  any  corporal  punishment  upon  his  wife,  though 
he  may  of  course  defend  himself  against  attacks.^ 

1  Cooley,  Const.  Limit.,  5th  ed.  739. 

2  Compare  S.  v.  Wvay,  72  N.  C.  253,  M.  209. 
8  Steph.  Dig.  Cr.  L.,  art.  172. 

4  S.  V.  Mayor  &  Aldermen  of  Knoxville,  12  Lea  (Tenn.),  146. 

5  Post,  §  207. 

6  1  East  P.  C.  261  ;  Steph.  Dig.  Cr.  L.,  art.  201;  Thompson  v.  S. 
(Tex.),  80  S.  W.  623. 

7  S.  V.  Neff,  58  Lid.  516 ;  C.  v.  Randall,  4  Gray  (Mass.),  36 ;  C.  v. 
Seed,  5  Clark  (C.  P.  of  Phil.),  78,  U.  402. 

8  C.  V.  McAfee,  108  Mass.  458;     P.  v.  AVinters,  2  Park.  C.  K.  (X.  Y.) 
10.     Compare  S.  c.  Oliver,  70  N.  C.  60,  M.  399. 


64  CRIMINAL  LAW.  [Sects.  63,  G4. 

§  63.  Defence. — In  defending  person  or  property  against 
an  unlawful  attack,  certain  acts  are  justifiable;  but  it  must 
in  all  cases  appear  that  they  are  both  reasonable  and  neces- 
sar}^  A  mere  attempt  to  commit  larceny  does  not  justify  the 
owner  of  the  property  attacked  in  killing  the  offender ;  nor,  if 
a  felon  can  easily  be  captured,  is  it  justifiable  to  kill  or  maim 
him.  This  principle  is  to  be  borne  in  mind  in  all  cases  of 
defence. 

Tiie  force  used  in  defence  must  be  continued  only  so  long 
as  is  necessary.  The  right  of  self-defence  will  not  justify  one 
in  continuing  an  affray.^ 

§  64.  Self-defence. 2  —  In  order  to  defend  himself  from  death 
or  serious  bodily  harm,  one  may  use  such  force  as  is  necessary, 
and  even  kill  as  a  last  resort.^  But  this  right  exists  only  to 
meet  an  actual  attack  of  a  mortal  or  at  least  serious  nature; 
mere  fear  of  injury  in  the  future,  or  a  desire  to  avoid  the 
chance  of  being  killed  will  not  justify  the  taking  of  life.*  On 
the  other  hand,  to  require  tiie  person  assailed  to  wait  till  the 
blow  was  actually  being  delivered  or  the  pistol  discharged 
would  render  this  right  of  little  avail.  It  is  enough  that  when 
he  meets  the  deceased  there  is  then  something  done  that  causes 
a  reasonable  apprehension  of  immediate  serious  injury .°  Not 
only,  however,  should  the  danger  be  present  and  immediate  to 
justify  the  right  of  self-defence  but  all  other  reasonable  means 
should  be  exhausted  before  killing.  If  a  retreat  in  safety  is 
possible,  it  should  be  tried.^     In  the  old  phrase,  the  party 

1  Reg.  V.  Knock,  U  Cox  C  C.  1,  C.  192. 

2  For  an  exhaustive  discussion  of  the  principles  of  self-defence  see  an 
article  by  Professor  J.  II.  Beale,  Jr.,  in  3  Columbia  Law  Kev.  526 ;  see 
also  post,  §§  234,  235. 

3  Foster  C.  L.  273  ;  S.  v.  Burke,  30  la.  331. 

4  Karr  v.  S.,  100  Ala.  4,  14  So.  851;  S.  v.  Westlake,  159  Mo.  669,  G I 
S.  W.  243 ;  Brewer  v.  S.  (Ark.),  78  S.  W.  773.  Compare  Kennedy  v.  C,  1 
Bush  (Ky.),  840. 

5  Price  V.  P.,  131  111.  223,  23  N.  E.  639;  S.  r.  Thompson,  83  Mo.  257; 
Goodall  V.  S.,  1  Or.  333,  M.  413;  S.  v.  Howard,  35  S.  C.  197,  14  S.  E.  481; 
Field  V.  C,  89  Va.  690,  16  S.  E.  865. 

6  Duncan  v.  S.,  49  Ark.  543,  6  S.  W.  164;  Rowsey  r.  C.,25  Ky.  L.  R. 
841,  76  S.  W.  409.  Compare  Tompkins  v.  C,  25  Ky.  L.  R.  1254,  77 
S.  W.  712. 


Sect.  64.]  GENERAL  PRINCIPLES  65 

attacked  must  "  retreat  to  the  wall."  Hence  where  the  de- 
fendant was  assaulted  bj  an  old  man  with  a  pitchfork,  and  he 
could  have  saved  himself  by  retreat,  a  killing  was  not  justified. ^ 
On  the  other  hand,  this  duty  to  retreat  cannot  be  imposed  upon 
the  assailed  party  unless  it  may  be  expected  to  produce  the 
result  sought,  i.  e.,  the  avoidance  of  trouble  without  danger  to 
the  innocent  party.  If,  tlierefore,  retreat,  though  possible, 
would  put  him  in  a  worse  position  than  before,  as  depriving 
him  of  the  shelter  of  his  house  ;  2  a  fortiori,  if  the  mere  re- 
treating would  endanger  him,  he  cannot  be  expected  so  to  do. 

In  some  jurisdictions  a  distinction  is  made  between  the 
exercise  of  the  right  of  self-defence  in  a  case  where  the  person 
exercising  that  right  is  wholly  innocent  of  any  share  in  caus- 
ing the  quarrel,  and  in  a  case  where  the  quarrel  is  mutual.  It 
is  sometimes  said  that  in  the  first  case  the  assailed  person 
need  under  no  circumstances  retreat,  in  order  to  make  the 
killing  justifiable.^  As  a  matter  of  both  public  policy  and 
legal  principle  it  would  seem  that  the  other  view  is  clearly 
preferable. 

However  the  courts  may  differ  on  the  above  matter  it  is 
everywhere  agreed  that  if  one  is  the  aggressor  in  an  affray, 
he  will  not  be  justified  in  doing  any  act  in  the  course  of  the 
affray,  even  if  it  is  done  in  self-defence,*  and  this  applies  not 
only  where  he  actually  begins  the  attack,  but  where  he  by 
insults  or  otherwise  provokes  the  deceased  to  assail  him.-''  But 
he  may  withdraw  from  the  affray  in  good  faith,  and  if  he  is 
then  pursued  and  attacked  by  the  other  party  he  may  defend 
himself.^     But  his  right  of  self-defence  revives  only  after  he 

1  S.  V.  Donnelly,  69  la.  705,  27  N.  W.  369. 

2  Eversole  v.  C,  95  Ky.  623,  26  S.  W.  816  ;  Albertz  v.  U.  S.,  162  U.  S. 
499. 

3  Reg.  V.  Knock,  14  Cox  C.  C.  1,  C.  192  ;  P.^ard  v.  U.  8.,  158  U.  S. 
5.50,  M.  416.  For  a  discussion  of  the  rise  of  this  doctrine  and  a  collection 
of  the  cases,  see  an  article  by  Professor  J.  II.  Beale,  Jr.,  in  16  Harvard  Law 
Rev.  567. 

4  Gibson  v.  S.,  89  Ala.  121,  8  So.  98 ;  Barnett  v.  S.,  100  Ind.  171;  S.  v. 
Herrell,  97  Mo.  105,  10  S.  W.  387.  Compare  Hjeronymus  v.  S.  (Tex.), 
79  S.  W.  313. 

6  S.  V.  Scott,  41  Minn.  365,  43  N.  W.  62. 

«  Parker  v.  S.,  88  Ala.  4,  7  So.  98;  P.  v.  Hecker,  109  Cal.  451,  42  P. 

5 


66  CRIMINAL  LAW.  [Sect.  65. 

lias  done  enough  to  make  it  clear  to  his  opponent,  as  a  reason- 
able man,  that  he  has  in  fact  withdrawn,^  and  if  the  inability 
of  his  o]_)ponent  to  perceive  this  is  due  to  the  defendant's  own 
act,  he  cannot  kill  even  in  self-defence.^ 

If  an  attack  on  a  person  is  not  of  such  violence  as  to  threaten 
severe  bodily  harm,  his  resistance  must  stop  short  of  injury  to 
life  or  limb.3  Foi'  instance,  one  may  not  take  life  to  prevent 
an  unlawful  arrest.'*  A  case  may,  however,  be  imagined  where 
even  the  taking  of  life  would  be  justifiable  in  resisting  an 
unlawful  arrest,  as  when  the  arrest  is  threatened  by  outlaws 
or  savages.  The  danger  of  such  an  arrest  would  be  as  grave 
as  that  of  bodily  harm. 

The  assaulted  party  is  not  required  to  make  defence  to  an 
attack  that  seems  to  threaten  bodily  harm  at  the  risk  of  him- 
self being  guilty  if  he  is  mistaken.^  If  the  apprehension  of 
bodily  harm  is  reasonable,  the  party  attacked  is  justified  in 
doing  all  that  is  necessary  to  avoid  the  apparent  danger,  even 
though  no  severe  harm  was  in  fact  intended.^  But  mere  good 
faith,  where  the  belief  is  not  one  that  a  reasonable  man,  in  the 
position  of  the  defendant,  would  have  entertained,  is  not 
sufficient.'^ 

§  65.  Defence  of  Another  Person.  —  Such  force  as  a  man  may 
use  in  defence  of  himself,  he  may  also  use  in  defence  of  one 
dependent  on  him  for  protection ;  as  a  parent  or  child,  wife, 

307 ;  S.  V.  Thompson,  45  La.  Ann.  969,  13  So.  395 ;   S.  v.  Linney,  52  Mo. 
40 ;  Stoifer  v.  S.,  15  O.  St.  47 ;  Vaiden  v.  C,  12  Grat.  (Va.)  717. 

1  S.  V.  Dillon,  74  la.  653,  38  N.  W.  525;  Jones  v.  S.  (Miss.),  36  So.  243; 
S.  V.  Smith,  10  Nev.  106 ;  McMahon  v.  S.  (Tex.),  81  S.  W.  296. 

2  P.  V.  Button,  106  Cal.  628,  39  P.  1073,  M.  421. 

8  Reg.  V.  Hewlett,  1  F.  &  F.  91,  K.  150;  Floyd  v.  S.,  .36  Ga.  91,  M.  412. 

4  Creighton  v.  C,  84  Ky.  103;  S.  v.  Cantieny,  34  Minn.  1,  24  N.  W. 
458;    contra,  Miers  v.  S.,  34  Tex.  Cr.  Rep.  161,  29  S.  W.  1074,  M.  429. 

6  Martin  v.  C,  25  Ky.  L.  R.  1928,  78  S.  W.  1104;  S.  v.  Miller,  43  Or. 
325,  74  P.  6.58;   Owens  r.  U.  S.,  130  Fed.  279. 

6  Shorter  v.  P.,  2  X.  Y.  193. 

'  P.  V.  Glover,  141  Cal.  233,  74  P.  745 ;  Cahill  v.  P.,  106  111.  621 ;  S.  v. 
Thompson,  9  la.  188 ;  S.  v.  Allen,  111  La.  154,  35  So.  495  ;  Wesley  v.  S., 
37  Miss.  327;  S.  v.  Berkley,  109  Mo.  66.5,  19  S.  W.  192  ;  S.  v.  Thomson, 
OS  S.  C.  133,  46  S.  E.  941.  See  1  Wharton  Cr.  Law,  10th  ed.,  §§  488- 
492. 


Sect.  66.]  GENERAL  PRINCIPLES.  67 

master,  or  servant.^  Every  member  of  the  State  has  the  duty 
of  suppressing  crime.  To  fail  to  do  so  is  in  itself  a  misde- 
meanor, viz.,  misprision.  When  the  crime  to  be  suppressed  is 
a  felony  of  violence,  whatever  force  is  necessary,  even  to  kill- 
ing, may  be  used.  This  being  so,  it  would  seem  that  the  right 
to  k\\\  under  these  circumstances  was  not  limited  to  the  above 
relations.^  But  the  exercise  of  unnecessary  force,  or  for  the 
prevention  of  a  merely  threatened  felony,^  or  on  behalf  of  the 
wrong  doer,^  renders  the  person  thus  interfering  himself  crim- 
inally responsible. 

§  66.  Defence  of  Property.  —  One  may  use  such  reasonable 
force  as  is  necessary  to  defend  one's  property,  which  is  in  one's 
possession,  from  attack.  Thus,  reasonable  force  may  be  used 
to  oust  an  intruder  from  real  estate,^  or  to  repel  an  unlawful 
attempt  to  seize  a  chattel.^  And  if  possession  of  such  property 
has  been  unlawfully  taken,  the  owner  has  the  right  of  imme- 
diate recapture.'  And  if  in  the  defence  of  the  property  by 
reasonable  means  the  assailant  is  killed  the  homicide  is  not 
punishable.^ 

But  the  defence  or  recapture  of  property  must  stop  short  of 
killing  or  severe  bodily  harm.  No  one  merely  to  defend  his 
property  has  the  right  to  endanger  life. 


9 


1  Reg.  V.  Rose,  15  Cox  C.  C.  540,  C.  19i,  K.  140;  Patten  v.  P.,  18 
Mich.  314,  M.  433 ;  S.  v.  Prater,  52  W.  Va.  132,  43  S.  E.  230. 

2  S.  V.  Maloy.  44  la.  104  ;  S.  i:  Westfall,  49  la.  328;  Saylor  v.  C,  97 
Ky.  184,  30  S.  W.  390.  Compare  S.  v.  Totman,  80  Mo.  App.  125,  2  Mo. 
App.  Reptr.  546. 

3  P.  V.  Cook,  39  Mich.  236. 

4  Guffee  v.  S.,  8  Tex.  App.  187,  M.  437. 

5  C.  V.  Clark,  2  Met.  (Mass.)  23. 

6  C.  V.  Keimard,  8  Pick.  (Mass.)  133;  Filkins  v.  P.,  69  N.  Y.  101;  S. 
V.  Yancey,  74  N.  C.  244. 

T  C.  r.  Donahue,  148  .Mass.  529,  20  N.  E.  171,  C.  157  ;  Anderson  v.  S.,  6 
Baxt.  (Tenn.)  608,  M.  449. 

8  S.  V.  Thompson,  71  la.  .503,  32  N.  W.  476.  Compare  S.,  v.  Merrill,  2 
Dev.  (X.  C.)  269. 

9  Rex  c.  Sculley,  1  C  &  P.  319,  K.  139;  Storey  v.  S.,  71  Ala.  338;  S. 
v.  Dooley,  121  Mo.  591,  26  S.  W.  558;  S.  i:  Zel]ars,7  N.  J.  L.  220;  S.  v. 
Morgan,  3  Ired.  (N.  C),  186;  S.  v.  Brandon,  8  Jones  (X.  C.),463;  Mont- 
gomery  v.  C,  98  Va.  840,  36  S.  E.  371. 


68  CRIMINAL  LAW,  [Sect.  G7 

§  G7.  Defence  of  the  "Castle." — The  law  allows  a  certain 
protection  to  one's  dwelling-house  which  is  not  given  to  ordi- 
nary property ;  and  some  acts  of  defence  are  allowable  in  one's 
dwellin"--house  which  could  not  be  lawfully  committed  outside. 
For  instance,  where  one  is  attacked  and  retreats,  he  need  re- 
treat no  farther  than  the  threshold  of  his  dwelling.  Any 
force,  even  to  killing,  is  allowable  to  keep  out  of  one's  dwelling 
an  assailant  who  threatens  death  or  severe  bodily  harm.^  And 
one  who  is  attacked  while  in  his  dwelling-house  by  an  assailant 
outside  is  justified  in  keeping  his  assailant  outside  the  house 
bv  the  use  o£  any  necessary  force.^  This  applies,  not  only  to 
the  house,  but  to  any  place  where  the  defendant  is  entitled  to 
be  protected  and  unmolested.^  On  the  other  hand,  since  the 
basis  of  the  right  is  defence  against  felonies  of  violence,  it  fol- 
lows that  where  the  defendant  had  no  reasonable  ground  to 
anticipate  such,  a  killing  is  not  justifiable.* 

It  has  been  said  in  the  authorities  that  any  force,  even  death, 
is  justifiable  in  putting  out  of  one's  dwelling-house  one  who  has 
entered  peaceably,  though  unlawfully,  and,  having  entered, 
makes  a  forcible  attack  on  the  owncr.'^  It  would  seem,  how- 
ever, that  all  other  means  short  of  killing  should  be  tried  ;  and 
that  if  it  is  practicable  to  defend  the  occupants  by  other  means 
short  of  killing,  as  by  the  imprisonment  of  the  assailants  in 
the  house,  this  should  be  done,  though  the  assailant  still  re- 
mains within  the  house  against  the  owner's  will.  The  case  is 
not  now  one  of  defence  of  the  castle,  but  only  of  the  occupants.*^ 

The  right  of  defence  of  a  dwelling-house  does  not  extend  to 
the  land  about  it.  One  may  not  kill  in  order  to  prevent  an 
aggressor  from  entering  the  door-yard." 

1  1  Hale  P.  C.  486;  S.  v.  Miadleham,  62  La.  L50,  17  N.  W.  4i6  ; 
Bledsoe  v.  C,  9  Ky.  L.  R.  1002,  7  S.  W.  884;  S.  v.  O'Brien,  18  ]\Iont.  1, 
43  P.  1091,  44  P.  399;  P.  v.  Rector,  19  Wend.  (N.  Y.)  569;  S.  v.  Martin, 
30  Wis.  216. 

2  Rex  V.  Cooper,  Croke  Car.  544,  K.  138;  S.  v.  Patterson,  45  Vt.  308. 
8  Rex  V.  Cooper,  ante;  Askew  v.  S.,  94  Ala.  4,  10  So.  657;  Maury  v. 

S.,  68  Miss.  605,  9  So.  445. 

4  Carroll  v.  S.,  23  Ala.  28,  M.  451;  P.  v.  Walsh,  43  Cal.  447. 
B  1  Hale  P.  C.  486. 

6  Wild's  Case,  2  Lewin,  214,  K.  116. 

7  Lee  V.  S.,  93  Ala.  15,  9  So.   407  ;  Wallace  v.  U.  S.,  162  U.  S.  466. 


Sects.  6-«,  68.]  GENERAL  PRINCIPLES.  69 

§  Q7a.  Burden  of  Proof.  —  While  tlie  burden  is  on  the  de- 
fendant to  introduce  evidence  of  the  justification  of  his  con- 
duct, it  would  seem  clear  on  principle  that  when  all  the  evidence 
is  in  the  State  must  convince  the  jury,  bej'ond  a  reasonable 
doubt,  that,  all  things  considered,  the  defendant  is  punishable.^ 

§  68.  Necessity.  —  It  has  been  said  that  the  pressure  of  cir- 
cumstances may  be  so  great  as  to  justify  one  for  an  act  which, 
but  for  such  pressure,  would  be  a  crime  ;  as  where  a  council, 
without  authority,  depose  and  imprison  a  governor,  to  prevent 
irreparable  mischief  to  the  State  ;2  or  one  of  two  persons 
swimming  in  the  sea  supported  by  a  plank  thrusts  the  other 
oil,  if  by  so  doing  one  would  be  saved,  and  by  not  so  doing  both 
would  be  lost.^ 

The  exact  limits  of  this  doctrine,  even  if  it  is  sound,  cannot 
be  fixed.^  It  certainly  does  not  justify  a  party  of  shipwrecked 
sailors  in  killing  the  weakest  of  their  number,  tliough  it  seemed 
tlie  only  way  to  preserve  their  livcs.'^  It  would  seem  that  merely 
on  the  ground  of  necessity  the  killing  of  another  can  never  be 
justifiGd.  If  circumstances  threaten  one  man's  life,  there  is 
no  principle  of  law  which  could  justify  him  in  shifting  the 
danger  to  another  man.  If,  to  be  sure,  one  man  has  secured 
a  tabula  in  naufragio,  and  another  attempts  to  share  it,  so  en- 
dangering the  life  of  the  former,  ho  may  protect  himself;  but  it 
i.s  a  case  not  of  necessity,  but  of  self-defence.  The  same  would 
seem  to  be  true  in  the  case  put,  of  deposing  a  tyrannical  gov- 
ernor. In  other  cases,  the  principle  of  public  policy,  already 
stated,  may  justify  a  crime.  Apart  from  these  principles,  it 
is  doubtful  whether  there  is  any  justification  in  the  fact  that  a 
crime  was  committed  through  so-called  necessity,  that  is,  by 

1  Lane  v.  S.,4t  Fla.  105,  32  So.  89^5;  S.  v.  Porter,  3i  la  131  ;  Gravely 
V.  S.,  38  Xeb.  871,  57  X.  W.  751 ;  P.  v.  Riordaii,  117  X.  Y.  71.  22  X.  E. 
455;  S.  r.  Patterson,  -15  Vt.  308.  See  17  Am.  Law  Rev.,  at  913; 
contra,  P.  v.  Milgate,  5  Cal.  127;  S.  d.  Welsh,  25  S.  C.  4;  S.  o.  Ballon, 
20  R.  I.  607,  40  Atl.  861. 

2  Rex  V.  Stratton,  21  St.  Tr.  1041. 

3  Bacon's  Maxims,  Xo.  5.  See  also  U.  S.  r.  Holmes,  1  Wall  Jr.  (U.  S, 
Circ.  Ct.)  1,  Fed.  Cas.  Xo.  1.5,383. 

*  Steph.  Dig.  Cr.  L.,  art.  32. 

5  Reg.  V.  Dudley,  14  Q.  B.  D.  273,  15  Cox  C.  C.  624,  C.  195,  K.  61. 


70  CRIMINAL  LAW.  [Sect.  69. 

reason  of  extreme  pressure  of  circumstances.  If  it  is  sliown, 
in  defence  to  an  indictment  for  larceny  of  bread,  that  it  was 
stolen  to  save  the  defendant's  life,  the  question  would  seem  to 
be  whether  it  is  for  the  interest  of  the  public  that  such  fact 
should  justify  larceny.  It  might  well  be  held  for  the  public 
interest,  in  order  to  prevent  tlie  increase  of  crime,  that  a  man 
under  such  circumstances  should  be  held  to  a  choice  of  evils, 
starvation  or  crime,  and  should  not  be  allowed  legally  to  shift 
liis  misfortune  to  the  owner  of  the  bread.^  If  this  view  were 
taken,  the  facts  of  the  case  ought  not  to  justify  larceny;  though 
they  should  doubtless  be  considered  in  assessing  the  punish- 
ment. On  the  other  hand,  where  the  result  of  the  act  is  not  to 
shift  a  loss  or  burden  to  another,  but  to  benefit  one  at  the  cost 
of  doing  an  act  that  ordinarily  public  policy  forbids,  it  would 
seem  that  extreme  exigencies  might  afford  a  justification. 
Thus,  putting  into  an  embargoed  port  to  avoid  sinking,'-^  or 
joining  the  enemy  to  avoid  death.^  Just  how  extreme  the  exi- 
gency must  be  is  not  clear.'^ 

It  would  seem  that  there  may  be  cases  of  true  necessity 
where  the  volition  of  the  defendant  has  no  sliare  in  the  result. 
Thus  where  the  defendant  was  indicted  for  not  repairing  a 
road,  the  fact  that  it  had  been  entirely  washed  away  was  a 
defence,  his  duty  not  extending  to  rebuilding  the  road.^ 

§  69.  Principals  and  Accessories.  —  Criminals  guilty  of  felony 
are  classified  by  the  common  law,  according  to  the  nearness  or 
remoteness  of  their  connection  with  the  crime  committed,  into 
principals  and  accessories.  In  high  treason  all  are  principals, 
on  account,  it  is  said,  of  the  lieinousness  of  the  crime  ;  and  in 
misdemeanors  all  are  principals,  because  it  is  beneath  the 
dignity  of  the  law  to  distinguish  the  different  shades  of  guilt 

1  Reg.  V.  Tyler,  8  C.  &  P.  610,  K.  57  ;  contra,  Rex  v.  Crutcliley,  5  C. 
&  P.  i:«. 

^  Brig  James  Wells  v.  U.  S.,  7  Cranch  22.  See  also  U.  S.  v.  Ashton, 
3  Sumn.  13,  Fed.  Cas.  No.  14,470,  lAI.  128. 

3  Resp.  V.  McCarty,  2  Dall.  (Pa.)  86.  Compare  Rex  v.  McGrowther, 
Foster's  Crown  Law,  13,  K.  56. 

4  Compare  S.  v.  Wray,  72  X.  C.  253,  M.  209,  and  Bice  v.  S.,  109  Ga. 
117,  34  S.  E.  202. 

8  Reg.  V.  Bamber,  5  Q.  B.  279.     See  also  C.  v.  Brooks,  99  Mass.  434. 


Sect.  69]  GENERAL  PRINCIPLES.  71 

in  petty  crimes.^     And  of  principals,  in  felony,  we  have  those 
of  the  first  and  second  degrees. 

A  principal  in  the  first  degree  is  the  perpetrator  of  the  act 
"which  constitutes  the  crime,  whether  he  does  it  with  his  own 
hand,  or  by  the  hand  of  an  innocent  third  person,  —  the  third 
person  being  ignorant  of  the  character  of  the  act  perpetrated  ;  ^ 
where,  for  instance,  a  parent  puts  poison  into  the  hands  of  his 
son  not  yet  arrived  at  the  age  of  discretion,  and  directs  him 
to  administer  it,  —  or  one  person,  by  fraud,  force,^  threats,  or 
otherwise,  induces  another  to  take  poison^  or  to  steal, — the 
fact  that  the  instigator  is  not  actually  present  is  immaterial, 
if  the  connection  between  him  and  the  act  be  direct,  or  the 
crime  be  committed  under  such  circumstances  that  no  one 
but  the  instigator  can  be  indicted  as  principal.  Otherwise, 
a  crime  might  be  committed,  and  no  one  would  be  guilty  as 
principal.^ 

On  the  other  hand  the  fact  that  the  person  actually  doing 
the  act  was  employed  so  to  do,  while  it  would  make  his  em- 
ployer civilly  liable  as  principal,  does  not  affect  his  criminal 
liability  as  principal,^  and  the  criminal  responsibility  of  the 
employer  as  principal  in  the  second  degree,  or  accessory, 
depends,  in  general,  on  the  principles  explained  below.  There 
are,  however,  certain  classes  of  statutory  crimes  in  which  it 

1  4  Bl.  Com.  35;  S.  v.  Stark,  63  Kan.  529,  66  P.  243  ;  Candle  v.  S. 
(Tex.),  74  S.  W.  545. 

2  Reg.  V.  Bannen,  2  Moo.  C.  C.  309,  C.  131  ;  Bishop  v.  S.,  30  Ala.  34; 
S.  V.  Shurtliff,  18  Me.  368.  And  it  is  immaterial  whether  the  act  is  done 
through  an  agent  not  capable  of  a  criminal  intent  as  a  child,  Reg.  v. 
JMichael,  po^t ;  Reg.  v.  Manley,  1  Cox  C.  C.  101,  K.  78 ;  S.  v.  Learnard, 
41  Vt.  585;  or  a  grown  person  acting  under  a  mistake  of  fact,  Reg.  v. 
Clifford,  2  C.  &  K.  202 ;  Gregory  v.  S.,  26  O.  St.  510 ;  or  a  grown  person 
who,  though  acting  for  the  criminal,  has  received  authority  justifying  his 
act,  Reg.  V.  Bannen,  ante. 

3  1  Hale  P.  C.  514  ;  Reg.  v.  Michael,  2  Moo.  C.  C.  120,  C.  133  :  Col- 
lins V.  S.,  3  Heisk.  (Tenu.)  14. 

4  Blackburn  w.  S.,  23  O.  St.  146. 

5  1  Hale  P.  C.  514  ;  Yaux's  Case,  4  Coke  44. 

6  Winter  v.  S.,  30  Ala.  22;  C.  v.  Hadley,  11  Met.  (Mass.)  66;  Allvn 
V.  S.,  21  Neb.  593,  33  N.  W.  212  ;  Sanders  v.  S.  (Tex.),  26  S.  W.  62. 
See  Rex  v.  Huggins,  2  Ld.  Raymond,  1574,  K.  35. 


72  CRIMINAL  LAW.  [Sect.  69. 

has  been  held  that  it  is  the  purpose  of  the  statute  to  make  the 
employer  responsible  at  all  hazards,  as  opening  a  saloon  on 
Sunday.^  The  same  principle  has  been  applied  in  a  modiiiLil 
form  in  indictments  for  criminal  libel,  the  mere  fact  of  publi- 
cation being  held  enough  to  establish  a  prima  facie  liability  on 
the  part  of  the  em{)loyer ;  tliough  this  was  held  rebuttable 
by  showing  neither  approbation  nor  criminal  negligence  as  to 
the  publication.^  So  also  with  a  public  nuisance.  Though  it 
may  be  proceeded  against  by  indictment,  it  is  in  its  nature 
more  closely  akin  to  a  public  tort  than  to  a  crime  in  the  strict 
sense  of  the  term,  and  it  has  been  held  that  the  employer  may 
be  held  directly  responsible  therefor,  although  the  acts  com- 
plained of  were  done  by  his  servants.^ 

When  several  persons  participate  in  an  act,  each  doing  a 
part  and  neither  the  whole,  as  where  several  take  part  in  a 
single  burglary,  all  are  principals  in  the  first  degree."^  If, 
however,  a  person  does  not  take  a  share  in  the  doing  of  the 
crime  charged  he  is  not  responsible  as  joint  principal ;  as 
where  A  and  B  start  out  to  rob  X,  and  A  drops  out  before 
the  robbery  takes  place  ;^  so  where  A,  a  servant,  is  indicted 
as  joint  principal  in  larceny,  and  it  appears  that  he  inten- 
tionally went  away  and  left  the  door  unlocked,  but  that  B  did 
the  actual  taking  ;^  and  so  of  any  case  where  the  criminal  act 
charged  was  not  in  fact  jointly  done.'^  But  if  a  person  has 
co-operated  in  a  plan  and  started  to  carry  it  out  jointly,  it 
seems  clear  that  a  mere  mental  withdrawal  will  not  free  him 
from  liability  as  principal,  since  his  companion  would  still 
in  fact  be  acting  in  reliance  upon  and  encouraged  by  him. 
He  must  at  least  do  enough  to  show  his  fellow  conspirator, 

1  P.  V.  Roby,  52  Mich.  577,  18  N.  W.  365 ;  S.  v.  McCance,  110  Mo. 
398,  19  S.  W.  648;  ante,  §§  53,  et  seq. 

2  Rex  V.  Almon,  5  Burr.  2688,  K.  38. 
s  Reg.  V.  Stephens,  L.  R.  1  Q.  B,  702. 

*  Rex  V.  Kirkwood,  1  Moo.  C.  C.  304,  C.  135.  So  whei"e  several  parties 
unite  to  make  a  forgery,  Rex  v.  Biugley,  R.  &  R.  446. 

5  Rex  V.  Riihardson,  1  Leach,  4tli  ed.  387. 

6  Reg.  V.  Jeffries,  3  Cox  C.  C.  85,  M.  464  ;  Reg.  v.  Tuckwell,  C.  &  M. 
215.     Compare  Rex  v.  Jordan,  7  C.  &  R  432. 

1  Reg.  V.  McPhane,  1  C.  &  M.  212,  M.  465 ;  P.  v.  Woody,  45  Cal.  289. 


Sect.  70.]  GENERAL  PRINCIPLES.  73 

as  a  reasonable  man,  that  be  is  no  longer  acting  with 
him.i 

Principals  in  the  second  degree  are  those  who,  without  ac- 
tually participating  in  the  act  itself,  are  present  aiding  and 
encouraging  the  party  who  commits  the  act ;  ^  as  where  one 
undertakes  to  watch  to  prevent  the  principal  from  being 
surprised,  or  to  aid  him  to  escape,  or  in  some  other  way  to 
be  of  immediate  and  direct  assistance  to  him  in  the  promotion 
of  his  enterprise.^  The  principal  of  the  second  degree  need 
not  be  actually  on  the  spot  where  the  crime  was  committed. 
Thus,  where  one,  in  pursuance  of  a  plan,  enticed  the  owner 
of  a  shop  to  a  place  at  some  distance,  and  kept  him  there 
while  his  confederates  broke  into  the  shop,  he  was  held  guilty 
of  burglary  as  principal.^ 

In  this  way  one  may  be  guilty  as  principal  of  a  crime  which 
lie  could  not  commit ;  for  instance,  a  woman  present  aiding 
and  abetting  may  be  guilty  of  rape.^ 

This  distinction  of  the  old  law,  however,  between  principals 
of  the  first  and  principals  of  the  second  degree,  is  not  now 
regarded  with  any  favor,  and  in  fact  it  has  in  many,  if 
not  most,  of  the  States  become  practically  obsolete.*^  Some 
statutes,  however,  recognize  it,  and  in  some  the  punishment 
is  based  upon  the  distinction. 

§  70.  Accessories  are  divided  into  two  classes,  —  those  be- 
fore and  those  after  the  fact.  An  accessory  before  the  fact 
is  one  who,  without  being  present  aiding  or  abetting,  procures, 
advises,  or  commands  another  to  commit  the  crime."      An 

1  S.  V.  Allen,  47  Conn.  121,  M.  483. 

2  Reg.  V.  Griffith,  Plowd.  97,  K.  73;  Reg.  v.  Swindall,  2  C.  &  K.  230; 
Thomas  v.  S.,  130  Ala.  62,  30  So.  391 ;  Mow  v.  P.,  31  Colo.  3.51,  72  P. 
1069;  S.  y.  Lewis,  4  Penne.  (Del.)  332,  55  Atl.  3;  Lamb  v.  S.  (Neb.), 
95  N.  W.  1050  ;  S.  v.  Hess.  65  N.  J.  L.  544,  47  Atl.  806  ;  S.  v.  Roberts, 
50  W.  Va.  422,  40  S.  E.  484.. 

3  4  Bl.  Com.  36  ;  Rex  v.  Owen,  1  Moo.  C.  C.  96,  C.  137;  C.  v.  Kiiapp, 
9  Pick.  (Mass.)  496. 

4  Breese  v.  S.,  12  O.  St.  146;  and  see  S.  v.  Hamilton,  13  Nev.  386. 
«  S.  V.  Jones,  83  N.  C.  605. 

6  1  Bi,sh.  Cr.  Law,  §  648. 

^  4  BL  Com.  63 ;  Rex  v.  Scares,  R.  &  R.  25,  C.  13a 


7-i  CRIMINAL  LAW.  [Sect.  TO. 

accessory  after  the  fact  is  one  who,  knowing  i  the  fact  that 
a  felony  has  been  committed,  receives,  relieves,  comforts,  or 
assists  the  felon.^  Here,  as  with  a  principal  in  the  second 
degree,  mere  knowledge  or  approval,  in  the  lack  of  any  act, 
will  not  make  a  person  liable  as  accessory.^  These  distinc- 
tions grew  out  of  the  rule  of  the  common  law,  that  every 
offence  should  be  particularly  described,  so  that  the  party 
charged  might  know  with  reasonable  certainty  to  what  he  was 
to  answer.  The  tendency  of  the  modern  law  is  to  disregard 
the  distinction,  so  far  as  it  can  be  done  consistently  with  the 
observance  of  the  rules  of  {)leading.* 

The  offences  of  advising  another  to  commit  a  felony,  the 
adviser  not  being  present  at  its  commission,  and  of  receiving 
and  concealing  stolen  goods,  are,  so  far  as  the  circumstantial 
description  is  concerned,  different  from  the  felonies  them- 
selves, and  in  several  of  the  States  the  latter  has  been  by 
statute  made  a  distinct  and  substantive  offence,  punishable 
whether  the  principal  felon  has  or  has  not  been  tried  and  con- 
victed, though  under  the  ancient  common  law  the  accessory 
could  be  put  upon  his  separate  trial  only  in  case  the  principal 
had  been  tried  and  convicted.^  This  rule  was  adopted  to 
avoid  the  absurdity  of  convicting  an  accessory  and  afterwards 
acquitting  the  principal.  And  where  now  the  accessory  may 
be  tried  before  or  after  the  principal  is  convicted,  if  after- 

1  Rex  V.  Greenacre,  8  C.  &  P.  35 ;  Reg.  v.  Butterfield,  1  Cox  C.  C  39, 
M.  499;  ^Vhorley  r.  S.  (Fla.),  33  So.  849;  S.  r.  Euipey,  79  la.  460,  44 
N.  W.  707.  That  it  is  enough  if  the  defendant  had  good  reason  to  believe 
the  person  a  criminal,  see  Tiilly  v.  C,  13  Bush  (Ky.),  142,  Dent  v.  S., 
43  Tex.  Cr.  Rep.  12(^,  65  S.  W.  627. 

2  4  Bl.  Cora.  37;  P.  v.  Garnett,  129  Cal.  364,  61  P.  1114;  Miller  v.  S. 
(Tex.),  72  S.  W.  996. 

8  P.  V.  Garnett,  129  Cal.  364,  61  P.  1114;  ^yalk-er  v.  S.,  118  Ga.  10, 
43  S.  E.  856;  S.  v.  Wolf,  112  la.  458,  81  X.  W.  536. 

*  P.  V.  Newberry,  20  Cal.  489  ;  Pearce  v.  T.,  11  Old.  438,  68  P.  504; 
Campbell  v.  C,  Si"  Pa.  187,  M.  492.  Cli.  91,  §  2,  24  &  25  Vict,  makes 
accessories  before  the  fact  and  principals  in  the  second  degree  indictable 
as  if  they  alone  had  committed  the  act,  although  any  other  party  to  the 
crime  may  have  been  acquitted. 

5  Simmons  »'.  S.,  4  Ga.  465  ;  C.  v.  Phillips,  16  Mass.  423.  Compare 
Starin  v.  P.,  45  N.  Y.  333  ;  Bliss  v.  U.  S.,  105  Fed.  508. 


Sect.  71.J  GENERAL  PRINCIPLES.  75 

wards,  before  sentence,  the  principal  be  tried  and  acquitted, 
the  accessory,  ah-eady  convicted,  on  proof  of  the  acquittal  of 
the  principal,  will  be  entitled  to  his  discharge,  the  statute 
modifying  the  common  law  rule  only  so  far  as  to  allow  of  the 
trial  of  an  accessory  before  or  after  the  conviction  of  the 
principal,  but  not  after  his  acquittal.^ 

An  accessory  before  the  fact  in  one  State  to  a  felony  com- 
mitted in  another  State  is  amenable  to  the  courts  of  the  State 
where  he  became  accessory,  although  the  principal  can  only  be 
tried  where  the  felony  was  committed.^ 

It  matters  not  how  remote  the  accessory  be  from  the  prin- 
cipal. If  A  through  one  or  more  intermediate  agents  procures 
a  person  to  commit  a  felony,  he  is  accessory  to  tlie  latter  as 
principal  ;  and  one  may  be  an  accessory  after  the  fact  to  an 
accessory  before  the  fact,  by  aiding  and  concealing  him.^ 

It  is  also  a  principle  of  the  common  law  that  the  offence  of 
the  accessory  cannot  be  greater  than  that  of  the  principal.* 

8  71.  Commission  of  a  Different  Crime.  —  A  person  who  ad- 
vises or  assists  in  the  commission  of  a  particular  crime  cannot 
be  held  as  principal  in  the  second  degree,  or  as  accessory  to  a 
principal,  who  commits  a  substantially  different  crime,  unless 
the  latter  is  the  natural  result  of  the  effort  to  commit  the  one 
advised.^  Thus,  if  a  person  advises  another  to  beat  a  third, 
he  is  accessory  to  the  beating  and  its  natural  consequences,  but 
he  is  not  accessory  to  the  different  and  additional  crime  of  rape, 
committed  by  the  principal.^  Where  one  entered  a  house  to 
commit  rape,  and  his  confederate  outside,  in  order  to  prevent 

1  McCavty  v.  S.,  44  Ind.  214,  2  Green's  Cr.  Law  Rep.  715.  A  sub- 
stantially similar  statute  exists  in  most  of  the  States,  as  well  as  in 
England.     See  post,  §  73. 

2  S.  V.  Chapiii,  17  Ark.  561;  S  v.  Wyckoff ,  2  Vroom  (N.  J.),  Go;  contra, 
S.  V.  Grady,  3t  Conn.  118  ;  S,  v.  Ayers,  8  Baxt.  (Tenn.)  96.  See  also  S. 
r.  Kicker,  29  Me.  81;  C.  v.  Smith,  11  Allen  (Mass.),  243;  Adams  v.  P.,  1 
Conist.  (X.  Y.)  173;  Holmes  v.  C,  25  Pa.  221;  2  Burr's  Trial,  440. 

3  2  Hawk.  P.  C,  c.  29,  §  1. 

4  Ibid. 

5  2  Hawk.  P.  C,  c.  29,  §  18;  Saunder's  Case,  2  Plowd.  473,  C.  176, 
K.  81 ;  Lamb  v.  P.,  96  111.  73  ;  S.  v.  Lucas,  55  la.  321. 

6  2  Hawk.  P.  C,  c.  29,  §  18;  Watts  v.  S.,  5  W.  Va.  532. 


76  CRIMINAL  LAW,  [Sects.  72,  73. 

discovery,  killed  one  who  attempted  to  enter,  the  one  wiio 
entered  is  guilty  of  the  homicide ;  ^  but  the  confederate 
would  not  be  guilty  of  homicide  in  case  the  one  who  had 
entered  killed  the  girl  by  throwing  her  out  of  the  window,  to 
prevent  detection,  after  his  purpose  was  accomplisiied.^ 
Murder  in  the  course  of  robbery  or  burglary  is  nut  an  unex- 
pected result,  and  all  confederates  are  guilty  of  it  ;  ^  and  the 
same  is  true  of  murder  committed  in  the  course  of  an  attempt 
to  escape  from  jail,  the  confederates  being  armed  ;^  so  murder 
in  carrying  out  a  plan  to  "jump"  land  and  hold  it  at  all  haz- 
ards.^ The  rule  has  been  stated  generally  in  England  by 
Lush,  J.,  at  Nisi  Prius,  that,  if  several  persons  agree  together 
to  commit  a  criminal  act  in  a  particular  way,  each  is  respon- 
sible for  the  acts  of  the  others  done  in  the  way  agreed  on,  but 
not  for  acts  done  in  any  other  way.  If,  for  instance,  A  and 
B  agree  to  assault  C  with  their  fists,  each  is  responsible  for 
the  consequences  of  an  assault  by  the  other  with  the  fists. 
But  A  is  not  responsible,  if  B,  without  his  knowledge,  uses  a 
knife,  for  the  consequences  of  any  injury  by  the  knife.*"  But 
it  may  be  doubted  if  this  is  sound  law.'' 

§72.  No  Accessories  in  Misdemeanors. — In  misdemeanors 
all  are  principals,  and  so  the  common  law  seems  to  have  held 
of  treason.     To  felonies,  therefore,  the  distinction  is  confined.^ 

§  73.  Accessories  in  Manslaughter.  — At  common  law  it  was 
once  held  that  one  could  not  be  accessory  before  the  fact  to 
manslaughter,  because  that  offence  was  in  its  nature  sudden 
and  unpremeditated.^  But  it  has  been  said  by  high  authority 
that  Lord  Hale  in  thus  stating  the  law  alludes  only  to  cases 

1  Mercersmith  v.  S.,  8  Tex.  App.  211,  M.  477. 

2  P.  V.  Knapp,  26  Mich.  112. 

3  Ruloff  V.  P.,  45  N.  T.  213 ;  S.  v.  Davis,  87  N.  C.  514 ;  S.  v.  Johnson, 
7  Ore.  210. 

4  S.  V.  Allen,  47  Conn.  121,  M.  483. 

6  Weston  V.  C,  111  Pa.  St.  251,  2  Atl.  191. 

«  Reg.  V.  Caton,  12  Cox  C.  C.  624,  K.  119. 

■?  See  4  Bl.  Com.  37  ;  Foster  Crira.  Law,  369. 

8  Reg.  V.  Greenwood,  2  Den.  C  C.  453  ;  C.  v.  McAtee,  8  Dana  (Ky  ), 
28;  C.  V.  Ray,  3  Gray  (Mass.),  441  ;  Williams  v.  S.,  12  S.  &  M.  (Miss.) 
58  ;  Ward  u.  P.,  6  Hill  (N.  Y.),  144 ;  S.  v.  Goode,  1  Hawks  (N.  C),  463. 

»  1  Hale  P.  C.  437. 


Sect.  74  ]  GENERAL  PRINCIPLES.  77 

of  killing  ^g?'  infortunium,  or  in  self-defence,  and  that  in  other 
cases  of  manslaughter  there  seems  to  be  no  reason  why  there 
may  not  be  accessories.^  However  this  may  be,  the  question 
becomes  unimportant  in  those  States  which  do  not  favor  the 
distinction  between  principals  in  the  first  and  second  degree, 
and  principal  and  accessory  before  the  fact ;  and  there  a  man 
indicted  as  accessory  before  the  fact  to  murder  may  be  con- 
victed though  his  principal  may  have  been  convicted  of  man- 
slaughter only,  or  even  if  he  have  been  acquitted.^ 

Where  one  employs  a  second  to  procure  a  third  person  to 
commit  a  felony,  the  first  two  are  accessories  to  the  third  prin- 
ci[)al.'^  And  this  is  true,  although  the  first  knows  not  who  the 
third  may  be.*  So  one  may  be  accessory  after  the  fact  by  pro- 
curing another  to  assist  the  principal.^  And  where  one  would 
become  an  accessory  if  the  offence  instigated  should  be  com- 
mitted, yet,  if  before  its  commission  he  countermands  his  ad- 
vice and  withdraws  from  the  enterprise,  he  is  not  accessory 
to  any  act  done  after  notice  actually  given  of  the  withdrawal.*^ 
He  is  only  accessory  to  the  act  which  has  been  committed 
when  the  aid  is  rendered.  Thus,  where  one  renders  aid  after 
a  mortal  stroke,  but  before  the  consequent  death,  he  is  not 
accessory  to  the  death.'^ 

§  74.  Husband  and  Wife.  —  By  the  common  law  the  duty  of 
a  wife  to  succor  and  harbor  her  husband  prevented  her  from 
incurring  the  guilt  of  an  accessory  after  the  fact  thereby.  Bat 
no  other  relationship  was  a  protection.*^  By  statute,  however, 
in  some  of  the  States,  other  relationships  have  been  made  a 
protection.     But  though  the  wife  cannot  be  an  accessory  after 

1  Erie,  J.,  Reg.  v.  Gaylor,  7  Cox  C  C.  253;  Reg.  v.  Taylor,  13  Cox  C. 
C.  68.  See  also  Rex  v.  Greenacre,  8  C.  &  P.  35 ;  S.  v.  Coleman,  5  Port. 
(Ala.)  32. 

-  P.  ('.  Newberry,  20  Cal.  439.     See  ante,  §  70. 

«  C.  V.  Smith,  11  All.  (Mass.)  243. 

4  Rex  V.  Cooper,  5  C.  &  P.  535. 

5  Ilex  v.  Jarvis,  2  M.  &  R.  40;  S.  v.  Engeman,  54  N.  J.  L.  247,  23  Atl. 
676. 

6  1  Hale  P.  C.  618. 
T  1  Hale  P.  C.  602. 

8  2  Hawk.  P.  C„  c.  29,  §  34. 


78  CRIMINAL  LAW.  [Sect.  75. 

the  fact  to  her  husband  as  prhicipal,and  it  is  said  that  for  the 
same  reason —  relationship  and  duty  to  succor  and  protect  — 
the  husband  cannot  be  accessory  after  the  fact  to  the  wife  ^ 
(against  the  opinion,  however,  of  the  older  authorities) ,2  yet 
either  may  be  accessory  before  the  fact  to  the  other  as  principal.^ 
§  75.  Assistance  Must  Be  Personal.  —  By  a  very  nice  dis- 
tinction, it  is  held  that  he  who  buys  or  receives  stolen  goods, 
though  lie  may  be  guilty  of  a  substantive  misdemeanor,  is  not 
an  accessory,  because  he  does  not  receive  or  assist  the  thief 
personally,  it  being  necessary  to  constitute  an  accessory  after 
the  fact  that  the  act  should  amount  to  personal  assistance  to 
the  principal;*  while  he  who  assists  him  in  further  carrying 
them  away,  after  they  have  been  stolen,  is  an  accessory.^  On 
the  other  hand,  a  person  who  is  in  fact  absent  and  away 
from  the  place  where  the  crime,  by  previous  arrangement,  is 
committed, — ^as  where  he  entices  and  keeps  away  the  owner 
of  a  store  while  his  confederate  robs  it,  this  absence  being  in 
furtherance  and  part  of  the  enterprise, —  is  not  an  accessory, 
but  a  principal.*^  And  so,  on  principle,  where  A,  the  watchman 
of  the  store,  in  furtherance  of  a  plan  to  rob,  keeps  away  him- 
self.^ So,  if  he  watches  for  the  purpose  of  giving  information, 
or  other  aid  if  necessary.^  Mere  presence,  however,  without 
approval  known  to  the  principal,  or  other  encouragement, 
evidenced  by  some  act,  does  not  make  one  an  accessory.^ 
Nor  is  one  absent,  though  in  some  sense  aiding,  as  the  stake- 
holder to  a  prize-fight,  to  be  regarded  as  an  accessory .^"^ 

1  1  Deac.  Cr.  Law,  15. 

2  4  Bl.  Com.  38 ;  1  Hale  P.  C  621 ;  2  Hawk.  P.  C,  c.  29,  §  34. 

3  Reg.  V.  Manning,  2  C.  &  K.  903;  Rex  v.  Morris,  R.  &  R.  270. 

4  4  Bl.  Com.  38;  Reg.  v.  Chappie,  9  C.  &  P.  3.)5,  K.  82 ;  Loyd  v.  S., 
42  Ga.  221;  P.  v.  Cook,  5  Park.  (X.  Y.)  C.  R.  351. 

6  Rex  V.  King,  R.  &  R.  339;  Norton  v.  P.,  8  Cow.  (N.  Y.)  137. 

6  Breese  v.  S.,  12  O.  St.  146. 

7  S.  V.  Poynier,  36  La.  Ann.  572,  M.  470. 

8  Doan  V.  S.,  2G  Ind.  495;  McCarney  v.  P.,  83  N.  Y.  408,  M.  468; 
Leslie  ;;.  S.,  42  Tex.  Cr.  R.  65,  57  S.  \V.  659. 

9  Walker  v.  S.,  118  Ga.  10,  43  S.  E.  856  ;  Clem  v.  S.,  33  Ind.  418  ; 
S.  V.  Wolf,  112  la.  458,  84  N.  ^Y.  536;  S.  v.  Hildreth,  9  Ired.  (N.  C.) 
440;  U.  S.  V.  Jones,  3  Wash.  Circ.  C.  223,  Fed.  Cas.  No.  15,495. 

10  Reg.  V.  Taylor,  13  Cox  C.  C.  68. 


Sects.  76,  77.]  GENERAL  PRINCIPLES.  79 

§  76.  An  Accomplice  is  one  who  shares  in  the  commission 
of  the  crime  in  such  manner  that  he  may  be  indicted  with  the 
principal  as  a  participator  in  the  offence.  Therefore,  under  a 
statute  for  unlawfully  administering  a  drug  to  a  pregnant 
woman  witli  intent  to  procure  a  miscarriage,  the  woman  is 
not  an  accomplice.^  Nor  is  a  person  who  enters  into  a  pre- 
tended confederacy  with  another  to  commit  a  crime,  and  aids 
him  therein  for  the  purpose  of  detecting  him,  having  himself 
no  criminal  intent,  either  an  accessory  or  an  accomplice.^ 
Nor  is  one  who  entraps  another  into  the  commission  of  a 
crime  for  a  like  purpose.^  So,  under  an  indictment  for  betting 
at  tenpins,  one  who  merely  takes  part  in  the  game,  but  does 
not  bet,  is  not  an  accomplice.* 

The  question  whether  one  is  an  accomplice  usually  arises 
in  the  course  of  a  trial,  as  a  question  of  evidence,  and  is  to  be 
determined  by  the  jury,  under  instructions  from  the  court  as  to 
what  constitutes  an  accomplice.^  Being  paHiceps  criminis, 
his  evidence  may  be  regarded  as  that  of  a  criminal.  And  it 
is  the  usual  practice  of  the  courts  to  advise  not  to  convict 
upon  the  uncorroborated  testimony  of  an  accomplice.^ 

LOCALITY    AND    JLTIISDICTION. 

§  77.  Territorial  Jurisdiction. —  As  a  rule,  an  offence  against 
the  laws  of  one  sovereignty  is  no  offence  against  the  laws  of 
another ;  and  one  sovereignty  has  no  jurisdiction  over,  and 
will  not  undertake  to  punish,  crimes  committed  in  another. 
The  jurisdiction  of  a  country  extends  only  to  its  boundaries, 
unless  it  is  bounded  by  the  high  seas.  In  case  it  is  so  bounded, 
the  government  has  a  quasi  territorial  jurisdiction  over  the 
sea  for  a  distance  of  three  miles  from  the  shore.'' 

1  C.  V.  Boynton,  116  Mass.  343;  S.  v.  Hyer,  39  N.  J.  L.  598. 

2  Ptex  V.  Despard,  28  How.  St.  Trials,  346 ;  S.  v.  McKean,  36  la. 
343. 

8  P.  V.  Ban-ic,  49  Cal.  342;  C  u.  Downing,  4  Gray  (Mass.),  29;  S.  v. 
Anone,  2  N.  &  McC.  (S.  C.)  27 ;  Alexander  v.  S.,  12  Tex.  540. 

4  Bass  ('.  S.,  37  Ala.  469. 

5  S.  V.  Schlagel,  19  la.  169;  C.  v.  Glover,  HI  Mass.  395. 

6  See  post,  §  130. 

'  Reg.  V.  Keyn,  13  Cox  C.  C.  403. 


80  CRIMINAL  LAT\^  [Sects.  :ia,  78. 

A  similar  jurisdiction  has  been  exercised  over  certain  bays 
extending  into  the  body  of  the  country,  even  where  they  were 
over  six  miles  in  width. ^ 

The  jurisdiction  of  the  court  in  which  an  indictment  is 
found  commonly  extends  only  over  a  single  county,  or  a 
smaller  division  of  territory,  and  in  such  case  it  is  necessary, 
in  order  to  show  jurisdiction  in  the  court,  to  prove  not  only 
that  the  crime  was  committed  within  the  jurisdiction  of  the 
sovereignty,  but  also  within  that  portion  of  it  over  whicli  the 
court  has  jurisdiction. 

In  many,  if  not  all  of  the  States,  it  is  provided  that,  when- 
ever a  crime  is  committed  within  a  certain  distance  of  a  county 
line,  the  courts  of  either  county  may  have  jurisdiction, —  a 
provision  rendered  necessary  to  prevent  a  failure  of  justice, 
from  inability  to  prove  beyond  reasonable  doubt  the  exact 
spot  where  the  crime  was  committed. 

It  is  further  to  be  noted,  that  jurisdiction  to  try  for  the 
commission  of  a  crime  is  conferred  by  the  law,  and  not  by 
the  cousent  of  parties.^ 

§  77a.  Personal  Jurisdiction.  —  In  addition  to  this  territorial 
jurisdiction  which  extends  over  every  person  within  the  con- 
fines of  the  State,  except  foreign  sovereigns  and  their  repre- 
sentatives, a  State  has  a  qualified  jurisdiction  over  its  citizens 
wherever  they  may  be,  in  that  it  can  lay  commands  upon 
them  which  it  can  enforce  upon  their  return  to  their  home 
State.3 

§  78.  Jurisdiction  on  the  High  Seas. —  For  the  purposes  of 
jurisdiction,  a  private  vessel  upon  the  high  seas  is  to  be  re- 
garded as  a  part  of  the  sovereignty  whose  flag  she  carries,  and 
crimes  committed  on  board  of  her  while  at  sea  are  cognizable 
only  by  that   sovereignty ,4  even  tliough  committed  by  a  for- 

1  Reg.  r.  Cunningham,  Bell  C.  C.  722;  U.  S.  Cable  Co.  v.  Anglo- 
American  Tel.  Co.,  L.  R.  2  App.  Cas.  394.  See  also  C.  v.  Manchester, 
152  Mass.  230,  25  N.  E.  113  ;  s.  c,  on  writ  of  error,  139  U.  S.  210. 

2  p.  V.  Granice,  50  Cal.  447. 

8  See  Dobree  v.  Napier,  2  Bing.  N.  C.  781;  Underhill  v.  Hernandez, 
168  U.  S.  250. 

4  Reg.  V  Armstrong,  13  Cox  C.  C.  184.  Compare  U.'  S.  v.  Smiley,  6 
Sawy.  640,  Fed.  Cas.  No.  16,317. 


Sect.  79.]  GENERAL  PRINCIPLES.  81 

eigner.i  When,  however,  such  vessel  comes  withhi  the  juris- 
diction of  another  civilized  power,  crimes  committed  on  board 
of  her  are  cognizable  by  the  power  into  whose  limits  she  has 
come,^  if  they  are  a  breach  of  the  peace  of  that  sovereignty. 
The  sovereignty  of  the  flag  still,  however,  has  concurrent 
jurisdiction.^ 

Where  a  crime  is  committed  on  the  high  seas  by  outlaws, 
that  is,  by  pirates,  any  civilized  government  which  captures 
the  pirates  has  jurisdiction  to  punish  the  crime.* 

§  79.  Locality  of  Crime. —  When  a  crime  is  committed,  its 
locality  is  the  place  where  the  public  is  injured,  that  is,  where 
the  act  takes  effect.  Thus,  where  a  force  is  set  in  motion  in 
one  State  or  foreign  sovereignty,  and  by  continuity  of  opera- 
tion takes  effect  in  another,  the  courts  of  the  latter  have  juris- 
diction to  punish  the  crime  as  if  all  the  res  gestce  had  taken 
place  within  its  territory.  If,  for  instance,  a  man  standing 
on  one  side  of  the  boundary  between  two  States  intentionally 
discharges  a  gun  at  a  person  standing  on  the  other  side  of  tiie 
boundary,  and  injures  him,  it  has  been  held  that  the  offence 
may  be  punished  at  the  domicil  of  the  injured  party .°  If  this 
latter  State  is  the  one  where  the  force  is  brought  in  contact 
with  the  injured  person  it  would  clearly  have  jurisdiction  be- 
cause of  this  latter  fact.  But  it  would  seem  doubtful  as  a 
matter  of  principle  whether  the  mere  fact  that  tlie  injured 
person  was  domiciled  in  a  particular  State  would  give  that 
State  jurisdiction  over  the  offender ;  since  he  owes  no  per- 
sonal allegiance  to  that  State  nor  has  he  violated  its  territorial 
sovereignty.^  In  accord  with  what  seems  to  be  sound  principle 
it  has  been  held  that  a  defendant  is  indictable  for  uttering  a 


1  Reg.  V.  Loppz,  7  Cox  C.  C.  4-31. 

2  Wildenhus's  Case,  120  U.  S.  1.  See  P.  v.  Tyler,  7  Mich.  161,  8 
Mich.  320. 

3  Reg.  V.  Anderson,  11  Cox  C.  C.  198;  post,  §  338. 

4  The  Marianna  Flora,  11  Wheat.  (U.  S.)  1. 

5  C.  V.  Macloon,  101  Mass.  1. 

6  See  1  Bish.  Cr.  Law,  §§  112  et  seq.  for  some  observations  tending  to 
limit  the  doctrine  of  C.  v.  Macloon,  and  compare  post,  this  section,  and 
§8L 

6 


82  CRIMINAL  LAW.  [Sect.  79. 

forged  deed  where  it  is  recorded,  even  though  the  forgery  was 
committed  in  another  State.^  So,  if  a  man  resident  in  one 
sovereignty  sends  an  innocent  agent  into  another,  who  by 
means  of  false  pretences  obtains  money  from  a  person  resi- 
dent in  the  latter,  the  principal  is  guilty  of  an  offence  in  the 
latter,  and  may  be  punished  by  its  tribunals,  if  the  offender  be 
found  within  the  limits  of  their  jurisdiction.^ 

On  the  other  hand,  the  first  State,  where  the  chain  of  events 
was  set  in  motion,  cannot  punish  for  the  completed  act,  since 
that  did  not  take  place  within  its  jurisdiction.  Thus  where  A, 
standing  on  the  deck  of  an  American  vessel,  killed  B  on  a 
foreign  vessel,  the  United  States  had  no  jurisdiction  over  the 
murder.^ 

But  it  is  the  act,  and  not  the  result  of  the  act,  which  makes 
a  crime;  consequently,  the  crime  of  murder  is  committed 
where  the  blow  is  struck,  not  where  the  victim  dies.^ 

It  may  happen  that  an  attempt  to  commit  a  crime  may  be 
indictable  in  one  place,  while  the  crime  consummated  must  be 
indicted  in  another ;  as  where  one  encloses  a  forged  note  in  a 
letter,  and  deposits  it  in  one  post-office  directed  to  another, 
the  depositing  may  be  indicted  at  the  former  place  as 
an  attempt  to  utter,  while  the  consummated  crime  may 
be  indicted  in  the  latter  place.^  On  the  other  hand,  a  per- 
son may  be  convicted  of  embezzlement  by  the  tribunals  of 
the  State  in  which  he  was  intrusted  with  the  property  em- 

1  Lindsey  v.  S.,  38  O.  St.  507.  See  also  Reg.  v.  Taylor,  4  F.  &  F.  .511, 
C.  125;  S.  V.  Marmouget,  10  La.  191,  34  So.  408;  P.  v.  Adams,  3  Denio 
(N.Y.),  190.  Compare  Reg.  v.  Finklestein,  16  Cox  C.  C.  107,  C.  127;  S. 
V.  Bass,  97   Me.  484,  54  Atl.  1113;  C.  v.  Taylor,   105   Mass.  172,  C.  129. 

2  S.  V.  Chapin,  17  Ark.  561 ;  Johns  v.  S.,  19  Ind.  421 ;  Adams  v.  P., 
1  Comst.  (N.  Y.)  173. 

3  U.  S.  V.  Davis,  2  Sumn.  482,  Fed.  Cas.  No.  14,932;  accord,  Rex 
V.  Coombes,  1  Leach,  4th  ed.  388;  S.  v.  Lake,  16  R.  I.  511,  17  Atl.  552. 
Compare  Reg.  v.  Armstrong,  13  Cox  C.  C.  181 ;  P.  v.  Botkin,  1-32  Cal. 
231,  64  P.  286. 

*  Green  v.  S.,  66  Ala.  40,  M.  588;  Davis  v.  S.,  44  Fla.  32,  32  So.  822; 
S.  V.  Gessert,  21  Minn.  369  ;  U.  S.  v.  Guiteau,  1  Mack.  (D.  C.)  498. 

5  William  Perkins's  Case,  2  Lew.  C.  C  150;  Reg.  v.  Burdett,  3  B.  & 
Aid.  717.  4  B.  &  Aid.  95;  P.  v.  Rathbuu,  21  Weud.  (N.  Y.)  509;  U.  S. 
V.  Worrall,  2  Dall.  (U.  S.)  384. 


Sect.  80.]  GENERAL  PRINCIPLES.  83 

bczzlcd,  although  the  fraudulent  conversion  took  place  in 
another  State.^ 

§80.  Continuing  Crime.  —  Where  a  thief  steals  goods  in 
one  county  and  brings  the  goods  into  another,  where  he  is 
taken  with  them,  he  may  be  indicted  for  larceny  in  the  county 
in  which  he  is  taken.  A  robber,  however,  in  one  county  bo- 
comes  merely  a  thief  in  another,  by  taking  his  stolen  goods 
into  the  latter.^  The  doctrine  has  been  explained  on  the 
rather  doubtful  ground  that  there  is  a  continuing  trespass, 
and  therefore  a  new  taking  and  larceny  in  every  jurisdiction 
into  which  the  goods  are  brought.  The  true  explanation  is 
probably  an  historical  one. 

This  rule  has  never  been  applied  in  England  to  a  taking  in 
one  sovereignty  and  bringing  into  another.  It  must  be  proved 
both  that  the  goods  were  stolen  and  that  the  thief  was  appre- 
hended within  the  jurisdiction  of  some  English  court.^ 

In  this  country  the  courts  of  some  States  have  applied  to 
the  States  the  analogy  of  the  counties  of  England,  rather  than 
of  the  several  countries  under  the  jurisdiction  of  the  English 
sovereign.  So  it  has  been  held  that  a  larceny  of  goods  in  one 
jurisdiction  is  a  larceny  in  every  jurisdiction  where  the  thief 
may  be  found  with  the  stolen  goods.*  But  in  other  States  tlie 
contrary  view  is  held,  it  would  seem  more  correctly.^  And 
an  indictment  against  a  receiver  of  stolen  goods  alleged  to 
have  been  stolen  in  Massachusetts  was  upheld  upon  proof 
that  the  goods  were  stolen  in  New  York,  and  taken  by  a  New 
York  receiver  into  Massachusetts,  and  there  sold  to  the  in- 
dicted receiver,'^  —  a  decision  the  soundness  of  which  cannot 
be  said  to  be  free  from  doubt. 

It  has  even  been  held  in  Vermont  that  where  goods  stolen 
in  a  foreign  country,  as,  for  instance,  Canada,  are  brought  by 

1  S.  V.  Haskell,  33  Me.  127. 

2  1  Hale,  P.  C.  .507,  508 ;  2  Hale,  P.  C.  163. 

3  Rex  V.  Prowes,  1  ]Moo.  C.  C.  319,  C.  379;  Reg.  v.  Carr,  15  Cox  C.  C. 
131,  note,  C.  378. 

4  S.  V.  Underwood,  49  Me.  181;  C.  v.  Cullins,  1  Mass.  116;  C.  v. 
Holder,  9  Gray  (Mass.),  7,  C.  368. 

5  Stanley  v.  S.,  21  O.  St.  166,  where  the  cases  are  collected. 

6  C.  V.  White,  123  Mass.  430. 


84  CRIMINAL  LAW.  [Sects.  81,  82. 

the  tliief  into  ono  of  the  States  of  this  country,  he  may  liere 
be  indicted  for  larceny. ^  This,  however,  is  not  the  general 
rule.^ 

§  81.  Statutory  Jurisdiction  of  Crime.  —  The  question  is 
sometimes  raised  liow  far  a  certain  jurisdiction  has  power,  by 
statutory  enactment,  to  punish  an  act  committed  on  the  teiTi- 
tory  of  another  jurisdiction.  An  act  whicli,  though  done  out- 
side a  State,  yet  has  a  disturbing  effect  on  tlie  people  of  th.i 
State,  may  doubtless  bo  punished  by  statute.  Thus  a  State 
may  by  statute  punish  forgery  outside  the  State  of  a  deed  to 
land  within  it.^  There  is  more  doubt  whether  a  State  has 
power  by  statute  to  punish  homicide  when  the  fatal  stroke 
was  given  in  another  jurisdiction,  but  the  death  occurred 
within  the  jurisdiction  attempting  to  punish  it.  In  Massa- 
chusetts such  power  has  been  held  to  exist  ;^  but  in  other 
States  it  has  been  denied.^ 

§  82,  Jurisdiction  of  the  United  States  Courts.  —  Wlicre  lands 
within  the  territorial  limits  of  a  State  are  ceded  to  the  United 
States,  exclusive  legislative  and  judicial  authority  is  vested  by 
the  Constitution  in  the  government  of  the  United  States  ;  and 
they  may  exercise  it,  unless  the  State,  by  the  act  of  cession,  re- 
serves rights  inconsistent  with  the  exercise  of  such  authority.^ 

The  United  States  have  jurisdiction,  also,  over  crimes  of 
such  a  nature  that  they  interfere  with  the  due  execution  of  the 
laws  of  the  United  States;  for  instance,  over  embezzlement  of 
pension  money,"  and  fraudulent  voting  for  members  of  Con- 
gress.^    They  have  jurisdiction  also  over  crimes  committed 

1  S.  V.  Bartlett,  11  Vt.  650,  C.  376. 

2  C.  V.  Uprichard,  .3  Gray  (Mass.),  4-34.  For  a  collection  of  later 
cases  on  the  subject  of  this  section  see  M.  714,  note,  and  also  S.  v.  De 
Wolfe,  29  Mont.  415,  74  P.  1084;  Beard  v.  S.  (Tex.),  78  S.  W.  348. 

3  Hanks  v.  S.,  13  Tex.  A  pp.  289. 
*  C.  V.  Macloon,  101  Mass.  1. 

5  S.  V.  Kelly,  76  Me.  331;  S.  v.  Carter,  27  N.  J.  L.  (3  Dutch.)  409, 
M.  585. 

6  Mitchell  V.  Tibbetts,  17  Pick.  (Mass.)  298;  Wills  v.  S.,  3  Ileisk. 
(Tenn.)  141 ;  U.  S.  v.  Ward,  1  Wool.  C  Ct.  17,  Fed.  Cas.  No.  10,039  ; 
U.  S.  V.  Tucker,  122  Fed.  518. 

7  U.  S.  V.  Hall.  98  U.  S.  343. 

8  In  re  Coy,  127  U.  S.  731. 


Sects.  83-85.]  GENERAL  PRINCIPLES.  85 

against  their  officers  in  the  course  of  their  duty,i  and  have  a 
certain  power  to  protect  from  the  criminal  process  of  a  State 
any  officer  who  is  indicted  for  an  act  done  in  the  pursuance  of 
his  duty .2 

§  83.  Concurrent  Jurisdiction.  —  The  same  act  —  counterfeit- 
ing, for  instance  —  may  be  an  offence  against  two  sovereign- 
ties, and  punishable  by  both.^  So  a  bank  officer,  under  the 
national  bank  law  of  the  United  States,  may  be  punished  by 
the  United  States  for  wilful  misappropriation  of  the  funds  of 
the  bank,  and  also,  under  the  common  law,  for  larceny,  or  for 
embezzlement,  if  the  statute  make  it  embezzlement,  by  the 
State  in  which  the  act  is  done."*  Doubtless,  however,  a  prose- 
cution in  good  faith  by  one  government  would  be  taken  into 
consideration  by  the  other.^ 

§  84.  Extradition.  — In  case  of  the  flight  of  a  criminal  from 
the  jurisdiction  in  which  he  committed  the  crime,  he  is  not 
punishable  where  he  is  found,  for  he  committed  no  crime 
against  that  sovereignty  ;  yet  the  government  which  he  offended 
cannot  arrest  and  punish  him.  In  the  absence  of  compact 
between  the  two  sovereignties  he  is  therefore  dispunishable. 
He  has,  however,  no  claim  to  impunity  ;  he  has  gained  no 
right  of  asylum,  and  justice  will  be  furthered  if  some  means 
are  found  of  punishing  him.  This  can  be  done  only  by  mu- 
tual arrangement  between  the  sovereignties,  that  is,  by  treaty. 
The  process  of  obtaining  the  surrender  of  a  fugitive  from  jus- 
tice to  the  sovereignty  whose  laws  he  has  broken  is  called  ex- 
tradition, and  the  treaty  by  which  the  surrender  is  guaranteed, 
an  extradition  treaty, 

§  85.  Foreign  Extradition.^ —  The  surrender  of  fugitives  from 
justice  to  foreign  governments,  being  a  matter  of  foreign  inter- 

1  U.  S.  V.  Logan,  45  Fed.  872. 

2  Tennessee  v.  Davis,  100  U.  S.  257;  In  re  Neagle,  135  U.  S.  1 ;  Re 
Fair,  100  Fed.  149. 

3  Pliillips  r.  P.,  55  111.  429  ;  Fox  v.  Ohio,  5  How.  (U.  S.)  410  ;  IMoore  v. 
Illinois,  14. How.  U.  S.  13.  So  extortion:  Sexton  v.  California,  189  U.  S, 
319;  counterfeiting  :  Martin  v.  S.,  18  Tex.  App.  224. 

*  C.  V.  Barry,  116  Mass.  1. 

5  U.  S.  V.  Amy,  14  Md.  149. 

*  See  in  general,  on  this  subject,  17  Am.  L.  R«r.  315. 


86  CRIMIXAL  LAW.  [Sect.  85. 

course,  is  by  the  Constitution  of  the  United  States  committed 
to  the  Federal  government  exckisively ;  it  is  therefore  uncon- 
stitutional for  a  State  to  surrender  a  fugitive  to  a  foreign  gov- 
ernment under  any  circumstances.^ 

An  application  for  extradition  under  a  treaty  is  made  to  the 
President  of  the  United  States,  who  thereupon  issues  a  man- 
date, directed  to  a  judge  or  commissioner  of  the  United  States, 
or  to  the  judge  of  any  court  of  record  of  any  of  the  States. 
Under  this  mandate  a  complaint  is  made  by  the  representative 
of  the  foreign  government  to  any  officer  named  in  the  mandate, 
and  a  warrant  of  arrest  is  thereupon  issued,  and  the  accused  is 
brought  before  the  court  for  examination. 

This  examination  is  not  a  trial,  and  sufficient  evidence  for 
conviction  is  not  required,  Tiie  accused  may  testify  on  his 
own  behalf,  and  the  evidence  should  be  sufficient  to  justify  a 
holding  for  trial  according  to  the  law  of  the  forum.^  The  find- 
ing is  certified  to  the  Secretary  of  State,  and  thereupon  the 
President  issues  his  warrant  of  extradition.  He  has,  however, 
discretion  to  refuse  to  issue  the  warrant.^  Extradition  treaties 
are  construed  not  to  cover  political  offences,  even  though  the 
act  committed  would  otherwise  be  extraditable.* 

Any  error  of  law  in  the  extradition  proceedings  may  be  re- 
viewed and  corrected  by  means  of  a  writ  of  habeas  corpus^ 
which  will  lie  even  after  the  President  has  issued  his  warrant.^ 
The  decision  of  the  commissioner  or  court  on  the  questions  of 
fact  involved  cannot,  however,  generally  be  reversed.  If  any 
legal  evidence  was  shown  which  would  justify  a  holding  for 
trial,  the  finding  on  questions  of  fact  is  final. ^ 

An  offender  brought  into  a  country  by  extradition  proceed- 
ings can  be  tried  only  for  the   offence  with  which    he  was 

1  U.  S.  V.  Rauscher,  119  U.  S.  407. 

2  In  re  Farez,  7  Blatch.  C.  Ct.  345,  Fed.  Cas.  No.  4,645;  Pettit  v. 
Walshe,  194  U.  S.  205. 

3  In  re  Stupp,  12  Blatch.  C.  Ct.  501,  Fed.  Cas.  No.  13,563;  Spear  on 
Extradition,  1st  ed.  214. 

4  Re  Tivnan,  5  Best.  &  S.  645. 

6  In  re  Farez,  7  Blatch.  C.  Ct.  345,  Fed.  Cas.  No.  4,645. 

6  In  re  Oteiza,  136  U.  S.  330 ;  Benson  v.  McMahon,  127  U.  S.  457. 


Sect.  86.]  GENERAL  PRINCIPLES.  87 

charged,  until  a  reasonable  time  has  been  given  him  to  return 
to  the  country  from  which  he  was  extradited.^ 

Where  one  is  forcibly  abducted  in  a  foreign  country  and 
brought  into  one  of  the  States  of  the  Union,  and  there  tried, 
no  Federal  question  is  involved.  The  extradition  treaties  do 
not  guarantee  an  asylum  in  the  foreign  country  ;  and  the  kid- 
napper therefore  violated  only  the  laws  of  the  foreign  country, 
not  of  the  United  States.  Whether  the  State  court  will  try 
an  offender  so  brought  witliin  its  jurisdiction  is  a  question 
solely  for  the  State  to  determine ;  but  the  better  view  appears 
to  favor  the  right  of  the  State  to  prosecute,^  and  its  jurisdic- 
tion is  equally  unaffected  by  irregularities  in  the  procedure 
of  the  surrendering  State.^ 

§  86.  Interstate  Extradition.  —  The  Constitution  of  the 
United  States  *  provides  for  the  surrender  by  any  State  of  fugi- 
tives from  justice  from  another  State.  This  makes  the  sur- 
render of  such  fugitives  the  absolute  duty  of  the  State  in  which 
they  have  taken  refuge  ;  a  duty,  however,  which  must  be  left 
to  the  moral  sense  of  the  Executive  of  such  State,  since  there 
is  no  power  in  the  Federal  government  to  compel  the  Execu- 
tive of  a  State  to  the  performance  of  his  official  duty,  nor  to 
inflict  punishment  for  the  neglect  of  it.^  Extradition  may  be 
had  under  the  Constitution  for  anything  which  is  made  crimi- 
nal by  the  laws  of  the  demanding  State,  though  it  was  not  a 
crime  when  the  Constitution  was  formed,  and  is  not  a  crime  in 
the  State  of  refuge.*^ 

Since  the  judicial  proceedings  of  one  State  are  to  have  full 
faith  and  credit  in  every  other,^  it  is  not  necessary  to  institute 
judicial  proceedings  in  the  State  of  refuge ;  the  proceedings 
in  the  demanding  State  are  enough.  Accordingly,  the  proc- 
ess of   interstate  extradition  is  simpler  than  that  of  foreign 

1  U.  S.  V.  Rauscher,  119  U.  S.  407. 

2  Ker  V.  Illinois,  119  U.  S.  436,  444. 

3  Kelley  v.  S.,  13  Tex.  App.  158. 
*  Art.  4,  §  2. 

5  Kentucky  v.  Dennison,  24  How.  (U.  S.)  66. 

6  Ibid. 

T  Const.  U.  S.,  art.  4,  §  1. 


88  CRIMINAL  LAW.  [Sect.  86. 

extradition.  The  procedure  is  established  by  act  of  Congress.^ 
An  application  is  made  to  the  Governor  of  the  State  of  refuge 
by  the  Governor  of  the  demanding  State,  accompanied  by  a 
copy,  certified  by  the  Governor  to  be  authentic,  of  an  indict- 
ment found,  or  complaint  made  to  a  magistrate,  in  the  de- 
manding State.  If  satisfied  that  the  accused  is  a  fugitive  from 
justice,  the  Governor  of  the  State  of  refuge  issues  his  warrant 
to  the  agent  of  the  demanding  State,  who  thereupon  arrests 
and  removes  the  fugitive. 

The  question  of  the  guilt  of  the  accused  is  not  in  issue.  It 
is  enough  if  he  is  legally  charged  with  crime,  according  to 
the  law  of  the  demanding  State.^  Whether  he  is  properly 
charged,  the  indictment  duly  certified,  and  the  demand  legally 
made,  are  questions  of  law,  reviewable  by  the  court  on  a  writ 
of  habeas  corpus.^ 

The  question  whether  the  accused  is  a  fugitive  from  justice 
is,  however,  a  question  of  fact,  to  be  decided  by  the  Governor 
of  the  State  of  refuge.  His  decision,  if  reviewable,  is  so  only 
if  the  evidence  is  utterly  insufficient  to  justify  a  finding  that 
the  accused  is  a  fugitive.^  To  be  a  fugitive  from  justice,  it  is 
not  necessary  that  the  accused  should  have  left  a  State  to  avoid 
prosecution  ;  it  is  enough  that,  having  committed  a  crime,  he 
left  that  jurisdiction,  and  when  sought  for  prosecution  was 
found  in  another,^  even  though  when  found  he  was  in  the  State 
of  his  domicil.^  One  is  not  however  a  fugitive  from  justice 
who  did  not  leave  the  State  in  which  he  is  found.  Thus, 
where  one  commits  a  crime  in  another  State  by  letter  or  by 
innocent  agent,  always  remaining  in  the  State  of  his  domicil,  he 
cannot  be  extradited." 

1  Stat.  1793,  c.  7,  §  1  ;  Rev.  St.  U.  S.,  §  5278. 

2  Kingsbury's  Case,  106  Mass.  223  ;  hi  re  Clark,  9  Wend.  (N.  Y.)  212  ; 
Wilcox  V.  Nolze,  34  O.  St.  520. 

8  Robb  V.  Connolly,  111  U.  S.  624. 

4  Ex  parte  Reggel,  114  U.  S.  642;  see  Eaton  v.  West  Virginia,  91  Fed. 
760. 

5  Roberts  v.  Reilly,  116  U.  S.  80,  97 ;  Re  Strauss,  126  Fed.  327. 

6  Kingsbury's  Case,  106  Mass.  223. 

"  In  re  Mohr,  73  Ala.  503 ;  Hartman  v.  Aveline,  63  Ind.  344 ;  Jones 
V.  Leonard,  50  la.  106. 


Sect.  86.]  GENERAL  PRINCIPLES.  89 

A  warrant  of  extradition  may  be  revoked  by  the  Governor, 
or  his  successor,  for  any  cause,  even  after  the  accused  is  in  the 
hands  of  the  agent  of  the  demanding  State.^ 

There  is  much  controversy  upon  the  question  whether  an  of- 
fender who  has  been  extradited  for  one  offence  may  be  tried 
for  another.  The  weight  of  authority  seems  to  be  that  this  is 
allowable,  provided  the  extradition  was  procured  in  good  faith, 
and  the  offence  for  which  the  trial  is  had  is  one  for  which  the 
offender  might  have  been  extradited.^  Many  respectable 
authorities,  however,  hold  that  an  offender  can  be  tried  only 
upon  the  indictment  on  which  he  was  extradited,  until  he  has 
had  an  opportunity  to  return  to  the  State  of  refuge.^ 

1  Work  V.  Corrington,  34  O.  St.  64. 

2  Waterman  v.  S.,  116  Ind.  51,  18  N.  E.  63;  Ham  v.  S.,  4  Tex.  App. 
645;  Harland  v.  Terr.,  3  Wash.  Terr.  131,  13  P.  453;  S.  v.  Stewart,  60 
Wis.  587, 19  N.  W.  429.  Compare  Re  Little,  129  Mich.  4.54,  89  N.  W.  38 ; 
Mahon  v.  Justice,  127  U.  S.  700. 

3  S.  0.  Hall,  40  Kan.  338,  19  P.  918;  in  re  Cannon,  47  Mich.  481,  11 
N.  W.  280. 


90  CRIMINAL  LAW.  [Sects.  87, 


CHAPTER    11. 

OF   CRIMINAL   PROCEDURE. 


§  87.   Process  of  a   Criminal  Prosecu- 
tion. 
98.   Criminal     Pleading. — The     In- 
dictment. 


§  111.   Joinder    of     Counts    and    Of- 
fences. 
1 1 7.   Double  Jeopardy. 
124.    Evidence  in  Criminal  Cases. 


PROCESS    OF   A   CRIMINAL    PROSECUTION. 

§  87.  Arrest.  —  The  first  step  in  a  criminal  suit  is  generally 
the  arrest  of  the  accused.  This  is  ordinarily  accomplished  by 
means  of  a  warrant,  issued  by  a  magistrate  upon  a  complaint 
under  oath.  The  warrant  is  thereupon  executed  by  the  proper 
official.  In  making  the  arrest,  the  officer  may  use  all  neces- 
sary force.  He  may  after  request  break  down  the  door  even 
of  a  third  party,  upon  reasonable  belief  that  he  will  find  the 
accused  there  ;i  especially  if  the  accused  has  been  lawfully 
arrested,  and  has  escaped.^ 

The  officer  must  be  prepared  to  show  his  warrant  on  de- 
mand ;3  though  he  need  not  show  it,  if  the  accused  or  the  owner 
of  the  house  into  which  he  comes  has  seasonable  notice  that 
he  is  an  officer  acting  under  a  warrant.* 

§  88.  Arrest  without  Warrant.  —  Under  certain  circum- 
stances an  arrest  may  be  made  at  once,  without  first  obtaining 
a  warrant.  A  private  person  is  justified  in  making  an  arrest 
only  if  felony  has  been  committed  ;  but  an  officer  may  arrest 
upon  reasonable  suspicion  of  felony,  or  for  a  breach  of  the 
peace  committed  in  his  view.  Tlie  power  of  an  officer  to 
break  down  doors,  and  to  use  all  necessary  force,  would  seem 

1  C.  V.  Reynolds,  120  Mass.  190;  2  Hale  P.  C.  117. 

2  Cahill  V.  P.,  106  111.  621;  C.  v.  McGahey,  11  Gray  (Mass.),  19i. 
8  Coddv.  Cabe,  1  Ex.  Div.  352. 

4  C.  I'.  Irwin,  1  All.  (Mass.)  587. 


Sects.  89, 90.]  OF  CRIMINAL  PROCEDURE.  91 

to  bo  equally  great,  if  he  is  justified  in  making  an  arrest, 
whether  he  has  or  has  not  a  warrant ;  but  a  private  person 
can  break  down  doors  only  while  following  a  felon  on  fresh 
pursuit.^ 

§  89.  Commitment.  —  After  being  arrested,  whether  with 
or  without  a  warrant,  the  prisoner  must  be  taken  before  the 
proper  court  or  magistrate  as  soon  as  possible  ;2  and  mean- 
while he  is  in  the  custody  of  the  officer  who  arrested  him.  His 
personal  property  cannot  be  interfered  with  except  that  any 
article  which  might  prove  the  crime,  or  which  is  described  in 
the  complaint  as  stolen,  may  be  taken  and  preserved  till  the 
trial.^  But  a  watch  or  money  belonging  to  the  prisoner  must 
be  left  in  his  possession.* 

When  the  prisoner  is  brought  before  the  court  or  magistrate, 
he  is  entitled  to  a  speedy  investigation  of  the  charge  against 
him.  If  the  crime  is  one  within  the  jurisdiction  of  the  judge, 
an  immediate  trial  may  be  had.  If,  however,  the  prisoner 
must  be  tried  in  a  court  of  higlier  jurisdiction,  evidence  is  in- 
troduced only  for  the  purpose  of  proving  a  ijrima  facie  case  ; 
and  if  that  is  found,  the  prisoner  is  committed  to  await  further 
proceedings. 

The  commitment  is  either  to  jail  or  to  bail.  Every  prisoner 
must  at  common  law  be  allowed  bail  upon  a  commitment, 
unless  he  is  charged  with  a  capital  crime.^ 

5  90.  Accusation.  —  The  formal  accusation  of  the  accused 
maybe  made  in  three  ways:  by  indictment,  by  information, 
or  by  complaint.  A  complaint  is  an  accusation  by  a  private 
person,  under  oath,  and  is  generally  allowed  only  in  case  of 
small  misdemeanors.  An  information  is  an  accusation  by  the 
Attorney  General  under  his  own  oath.  This  is  not  a  common 
form  of  procedure,  except  in  a  few  States  of  the  Union.  The 
common  form  of  accusation  is  by  indictment,  which  is  found 
by  the  grand  jury  upon  its  oath. 

1  4  Bl.  Com.  292. 

2  Tubbs  V.  Tukey,  3  Cush.  (Mass.)  438. 

8  Rex  V.  Burgiss,  7  C.  &  P.  488;  Houghton  v.  Bachman,  47  Barb.  (N. 
Y.)  388. 

4  Rex  V.  Kinsey,  7  C.  &  P.  447 ;  Rex  v.  O'Donnell,  7  C.  &  P.  138. 

6  4  Bl.  Com.  296. 


92  CRIMINAL  LAW.  [Sect.  91. 

An  indictment  may  be  found  against  one  who  has  already 
been  arrested  and  committed,  or  against  one  who  is  still  at 
large ;  in  tlie  latter  case,  a  warrant  for  arrest  issues  at  once 
on  the  indictment  being  found,  and  is  served  in  the  same  way 
as  a  warrant  issued  on  complaint  under  oath. 

§  91.   Grand  Jury The  grand  jury  is  a  jury  of  at  least 

twelve  men,  and  of  -no  more  than  twenty-three ;  a  majority  of 
the  jury,  and  at  least  twelve  jurors,  must  join  in  finding  a  true 
bill.i 

Upon  assembling,  the  jury  is  charged  by  the  court,  and  then 
retires  for  consultation.  No  one  may  be  present  at  its  delib- 
erations except  the  witnesses,  and,  in  this  country,  the  public 
prosecuting  attorney.''^  The  jury  chooses  a  foreman,  and  then 
proceeds  to  consider  the  matters  that  may  come  before  it. 

Tiie  grand  jury  can  act  only  upon  certain  lines.  Its  chief 
duty  is  to  consider  and  pass  upon  the  bills,  that  is,  the  formal 
written  charges  of  crime,  prepared  by  the  prosecuting  at- 
torney. Such  bills  being  presented  to  it,  the  evidence  in 
support  of  the  prosecution  is  heard.  It  is  the  duty  of  the 
prosecuting  attorney  to  see  that  none  but  legal  evidence  is 
allowed  to  go  to  the  grand  jury.  He  may  open  the  case,  but 
must  take  no  part  in  the  discussion,  and  express  no  opinion. 
If  twelve  jurors  find  that  there  is  reasonable  cause  for  believ- 
ing the  charge  stated  in  a  bill  to  be  a  true  one,  the  words 
"  true  bill "  are  indorsed  upon  it,  and  certified  by  the  foreman  ; 
and  at  the  end  of  the  jury's  sitting  the  foreman  hands  all 
"  true  bills  "  to  the  clerk.  Bills  so  indorsed  and  presented  to 
the  court  are  called  indictments.  As  an  indictment  cannot 
be  found  originally  except  by  the  grand  jury,  so  it  can  be 
amended  only  by  that  body. 

Besides  the  bills  prepared  by  the  prosecuting  attorney  for 
the  consideration  of  the  grand  jury,  it  may  inquire  into  certain 
other  matters ;  namely,  matters  called  to  its  attention  by  the 
court,  or  such  public  offences  as  come  to  light  while  it  is  con- 
sidering other  matters,  or  as  may  have  come  to  the  knowledge 

^  Clyncard's  Case,  Cro.  Eliz.  654. 
2  McCuUough  V.  C,  67  Fa.  30. 


Sects.  92-94.]  OF  CRIMINAL  PROCEDURE.  93 

of  individual  jurors.^  If  upon  inquiry  these  matters  seem  to 
require  prosecution,  the  grand  jury  states  them  in  the  form  of 
a  presentment,  and  it  is  thereupon  the  duty  of  the  prosecuting 
attorney  to  frame  an  indictment  for  the  crime  thus  presented. 

§  92.  Arraignment  and  Pleading.  —  An  indictment  having 
been  found,  the  prisoner  must  be  set  at  the  bar  of  the  court ; 
it  is  then  read  to  him,  and  he  is  required  to  answer  to  it. 
This  is  called  the  arraignment.  Except  in  the  case  of  small 
misdemeanors,  where  the  punishment  is  only  by  hue,  tlie  pris- 
oner must  be  personally  at  the  bar  to  plead. 

If  the  prisoner  would  not  plead,  but  stood  mute,  it  was 
formerly  necessary  to  empanel  a  jury  and  find  whether  the 
prisoner  stood  mute  by  visitation  of  God,^  and  if  not,  to  com- 
pel tlie  prisoner  to  plead  by  the  use  of  force,-'^  at  least  in  case 
of  felony.  Now,  however,  the  plea  of  not  guilty  is  everywhere 
entered,  by  statute,  in  such  a  case. 

§  93.  Trial  and  Verdict.  —  If  the  prisoner  pleads  not  guilty, 
an  issue  is  joined,  and  must  be  tried  by  a  jury.  The  prisoner 
must  be  present  during  the  trial;  a  privilege,  however,  wliich 
he  may  waive,  except  in  capital  cases.  If  there  is  no  such 
waiver,  the  jury  must  be  empanelled,  and  the  evidence,  charge, 
and  verdict  must  be  given,  in  the  presence  of  the  prisoner. 
Motions  may,  however,  be  made  and  argued  by  counsel  in  liis 
absence.  If  the  prisoner  pleads  guilty,  or  nolo  contender's^  no 
issue  is  joined,  and  there  is  therefore  no  trial ;  and  sentence 
may  be  at  once  imposed. 

The  prisoner  may  be  convicted  not  merely  of  the  offence 
with  which  he  is  charged,  but  of  any  lesser  offence  that  can 
be  carved  out  of  his  indictment.  At  common  law,  however, 
he  cannot,  on  an  indictment  for  felony,  be  convicted  of  a  mis- 
demeanor ;  but  this  has  been  generally  changed  by  statute. 

§  94.  Nolle  Prosequi  and  Quashing.  —  The  prosecuting  at- 
torney may,  in  his  discretion,  put  an  end  to  the  prosecution  of 
an  indictment  by  entering  a  nolle  prosequi.  This  can  be  done 
in  some  States  only  by  consent  of  the  court. 

1  McCullough  V.  C,  67  Pa.  30. 

2  S.  V.  Doherty,  2  Overton  (Tenn.),  80. 

3  1  Steph.  Hist.  Or.  Law,  297. 


94  CRIMINAL  LAW.  [Sects.  95-97. 

If  the  iiiJictinciit  is  defective,  it  may  be  quashed  on  motion 
of  either  party,  or  by  the  court  on  its  own  motion.  An  indict- 
ment may  be  quashed  at  any  stage  of  the  prosecution  if  it  is 
apparent  on  the  face  of  it  that  no  judgment  upon  it  could  be 
supported.  For  certain  formal  defects,  however,  an  indict- 
ment can  be  quashed  only  before  plea. 

§  95.  Benefit  of  Clergy  was  an  old  common  law  right  which 
the  clergy  had,  when  they  were  charged  with  crime,  of  having 
their  causes  transferred  to  the  ecclesiastical  tribunals,  or, 
after  conviction,  of  pleading  certain  statutes  in  mitigation  of 
sentence.  Of  its  specific  character  and  its  limitations  it  is  not 
proposed  to  speak,  as  it  is  doubtful  if  it  is  a  right  which  can 
now  be  successfully  asserted  in  any  State  of  the  Union. ^ 

§96.  Sentence. — The  only  remaining  step  in  a  criminal 
prosecution  is  the  judgment  and  sentence  of  the  court.  The 
defendant  should  be  sentenced  in  presence  of  the  court ;  but 
this  is  a  privilege  he  may  ordinarily  waive.  In  case  of  capital 
crimes,  however,  the  prisoner  must  be  present,  in  order  that 
he  may  state  any  reason  why  sentence  should  not  be  passed 
upon  him.  This  is  a  matter  of  great  importance  to  the  State 
itself,  which  is  interested  in  preserving  the  lives  of  its  citi- 
zens ;  and  the  prisoner  is  therefore  not  allowed  to  waive  tlie 
privilege. 

§  97.  Pardon.  —  The  executive  branch  of  the  government 
has  power  to  pardon  an  offence,  —  a  power  which  is  defined 
and  regulated  in  most  of  our  constitutions.  In  the  absence 
of  constitutional  limitation,  a  pardon  may  be  granted  at  any 
time  after  an  offence  has  been  committed,  whether  or  not 
prosecution  has  begun.  The  effect  of  a  pardon  is  to  remove 
all  the  consequences  of  a  crime,  not  merely  to  remit  the 
sentence.^ 

A  pardon  may  be  conditional ;  as  that  the  offender  will 
permanently  leave  the  country,  or  will  submit  to  a  lesser  pun- 
ishment. In  this  case,  if  the  offender  breaks  the  condition, 
the  original  sentence  may  be  enforced.^     This  may  be  done 

^  See,  for  these  particulars,  1  Bish.  Cr.  Law,  §  38,  and  the  authorities 
by  him  cited. 

^  4  Bl.  Com.  40L  8  1  Bish.  Crim.  Law,  7th  ed.  §  914. 


Sect.  98.]  OF  CRIMINAL  PROCEDURE.  95 

by  immediate  arrest  and  return  to  prison  ;  ^  though  in  Michi- 
gan it  is  held  that  one  accused  of  violating  the  condition  of 
his  pardon  is  entitled  to  a  trial.^ 

A  temporary  stay  of  execution  of  the  sentence  is  called  a 
reprieve.^ 

CIIIMINAL    PLEADING.  THE    INDICTMENT. 

§  98.  Requisites  of  Indictment.  —  The  indictment  is  the 
formal  charge  upon  which  the  entire  suit  is  based ;  and  it 
must  set  forth  the  crime  of  which  the  defendant  is  accused 
fully,  plainly,  substantially,  and  formally.^  It  should  contain 
a  description  of  the  facts  which  constitute  the  crime,  without 
ambiguity  or  inconsistency  ;  and  except  where,  as  in  indict- 
ments for  felony,  certain  formal  woi-ds,  such  as  feloniously^ 
burglariously^  with  malice  aforethought,  etc.,  must  be  used,^  the 
language  may  be  such  as  is  ordinarily  used  and  understood  ; 
so  long  as  the  meaning  is  clear  and  unambiguous,  the  language 
is  immaterial.^ 

Since  judgment  must  be  given  on  the  indictment,  this  must 
state  facts  which  are  incompatible  with  the  innocence  of  the 
accused.  If  it  is  capable  of  a  meaning  which  would  not  neces- 
sarily import  a  crime  it  is  insufficient,"  and  may  be  attacked 
on  this  ground  by  demurrer. 

Two  and  sometimes  three  sets  of  allegations  are  necessary 
to  complete  a  charge  of  crime.  It  must  first  be  shown  what 
right  the  prosecuting  government  has  to  complain  ;  that  is, 
an  obligation  toward  the  government  must  be  shown  to  have 
been  infringed.  For  this  purpose,  it  is  ordinarily  enough  to 
show  that  the  act  was  committed  within  the  jurisdiction  of  the 
government  prosecuting.  If  the  crime  is  one  against  the 
property  of   an  individual,  the  existence  of  this   individual 

1  S.  0.  Barnes,  32  S.  C.  U,  10  S.  E.  611. 

2  P.  V.  Moore,  62  Mich.  496,  29  X.  W.  80. 
8  4  Bl.  Com.  394. 

4  Mass.  Bill  of  Rights,  art.  12 ;  C.  v.  Davis,  11  Pick.  (Mass.)  432. 

5  2  Hawk.  P.  C,  c.  25,  §  55. 

6  King  v.  Stevens,  5  East,  244,  259. 
^  C.  V.  Grey,  2  Gray  (Mass.),  501. 


96  CRIMINAL  LAW.  [Sects.  99-101, 

right  must  also  be  alleged  in  addition  to  the  public  right. 
The  right  or  rights  having  thus  been  set  up,  an  infringement 
by  tlie  accused  must  finally  be  charged. 

Where  an  indictment  is  made  up  of  two  or  more  distinct 
charges  of  crime,  each  cliarge  is  called  a  count  of  the  indict- 
ment. Every  count  must  in  itself,  without  reference  to  the 
others,  be  sufficient  as  an  indictment. 

§  99.  Elements  of  Crime.  —  The  indictment  must  contain  all 
the  elements  of  the  crime  charged.  Tims,  where  a  specific 
intent  is  one  element  of  a  crime,  this  intent  must  be  alleged 
in  the  indictment.^  So  where  the  punishment  is  greater  for  a 
second  offence,  a  former  conviction  must  be  alleged  in  the 
indictment  in  order  to  justify  the  infliction  of  the  greater 
punishment.^ 

§  100.  Particularity.  — The  particularity  which  is  necessary 
in  framing  an  indictment  is  governed  by  the  rights  of  the  ac- 
cused. Any  one  accused  of  crime  has  a  right  to  be  informed 
of  the  charge  against  him,  so  as  to  prepare  for  his  defence. 
He  has  a  right  also  to  have  the  record  so  full  that  he  may 
avail  himself  of  the  proceedings  if  he  is  again  prosecuted  for 
the  same  acts.  There  are  therefore  two  tests  of  the  particu- 
larity of  an  indictment :  first,  does  it  furnish  sufficient  infor- 
mation and  particulars  to  enable  the  accused  properly  to 
prepare  his  defence  ;  secondly,  is  it  sufficiently  precise  to  pro- 
tect him  from  a  second  prosecution.^ 

§101.  Surplusage.  —  Where  allegations  are  made  in  the 
indictment  which  are  unnecessary  to  the  offence  charged, 
they  may  be  treated  as  surplusage ;  and  so  long  as  the 
offence  is  sufficiently  described  without  them,  they  may  be 
neglected,  and  a  failure  to  prove  them  will  not  prevent  a 
conviction. 

It  is  very  different,  however,  when  a  material  allegation  is 
made  unnecessarily  precise,'*  as  when  a  horse  is  described  as 
white,  or  a  person  is  alleged  to  be  a  resident  of  a  certain  place. 

1  C.  V.  Shaw,  7  IMefc.  (Mass.)  52. 

2  C.  V.  Harrington,  130  Mass.  35;  Larney  y.  Cleveland,  31  O.  St.  .599. 

3  C.  V.  Ramsey,  1  Brewst.  (Pa.)  422 ;  Fink  v.  Milwaukee,  17  Wis.  26. 
♦  Shearm  v.  Burnard,  10  A.  &  E.  593,  596. 


Sect.  102.]  OF   CRLMINAL  PROCEDURE.  97 

For  in  preparing  his  defence  the  accused,  knowing  that  the 
allegation  must  be  proved,  would  prepare  to  meet  it  as  it  was 
made,  and,  if  he  could  prove  it  untrue,  would  be  justified  in 
resting  his  case.  Therefore,  where  an  indictment  alleges  that 
the  accused  suborned  J.  S.  of  W.  to  commit  perjury,  it  is  not 
j)roved  by  showing  that  he  suborned  J.  S.  of  X. ;  though  the 
indictment  would  have  been  sufficient  if  it  had  not  alleged 
the  residence  of  J.  S.^  So  where  the  indictment  describes  the 
special  marks  on  timber  alleged  to  have  been  stolen,  these 
marks  must  be  proved  ;  ^  and  where  a  burial-ground  alleged  to 
have  been  desecrated  is  described  in  the  indictment  by  metes 
and  bounds,  the  description  must  be  proved.^  And  in  like 
manner,  where  a  woman  is  unnecessarily  described  as  a  widow, 
she  must  be  proved  to  be  a  widow.* 

§  102.  Jurisdiction  and  Venue.  —  As  has  been  seen,  facts 
must  be  stated  which  show  the  right  of  the  court  to  try  and 
punish ;  that  is,  there  must  be  an  allegation  of  jurisdiction  on 
the  part  of  the  sovereignty  prosecuting.  This  is  ordinarily 
done  by  alleging  that  the  act  was  against  the  peace  of  that 
sovereignty.  If,  however,  one  sovereignty  succeeds  another, 
—  as  happened  for  instance  where  the  State  of  Maine  was 
separated  from  Massachusetts,  • —  an  act  committed  before  the 
change,  but  prosecuted  after  it,  must  be  alleged  to  have  been 
against  the  peace  of  the  former  government.^ 

Not  only  must  there  be  an  allegation  of  jurisdiction  on  the 
part  of  the  State  ;  jurisdiction  over  the  crime  must  also  be 
shown  on  the  part  of  the  court  in  which  the  indictment  is 
found.  This  is  done  by  laying  the  venue  of  the  crime  within 
the  county  or  other  district  over  which  the  court  has  juris- 
diction. It  is  generally  provided  that  a  crime  committed 
within  a  certain  distance  of  the  boundary  of  two  couuties 
may  be  tried  in  either  county.  In  such  a  case,  in  order  to 
show   jurisdiction    on   the    record,  the   act   must   be  alleged 

1  C.  V.  Stone,  152  Mass.  498,  25  N.  E.  967. 

2  S.  V.  Noble,  15  Me.  476. 

8  C.  V.  Wellington,  7  All.  (Mass.)  299. 
*  Rex  V.  Ueeley,  1  Moo.  C.  C.  303. 
5  Damon's  Case,  6  Me.  148. 
7 


98  CRIMINAL  LAW.  [Sect.  103. 

to  liave  been  committed  in  that  county  in  which  the  court  is 
sitting.^ 

§  103.  Names,  — The  indictment  must  contain  tlie  name  of 
tlic  accused,  and  of  any  one  wliose  person  or  property  he  is 
charged  with  having  injured.  Tliese  names  must  be  absolutely 
correct;  otherwise,  if  the  accused  were  a  second  time  prose- 
cuted, he  could  not  avail  himself  of  the  former  judgment. 
Therefore  the  transposition  of  two  Christian  names,^  or  the 
omission  of  one,^  is  a  fatal  misnomer. 

Not  every  slight  error  in  a  name  is  however  fatal.  The 
important  question  is,  whether  it  would  be  impossible  to  doul)t 
the  identity  ;  and  if  the  name  as  written  sounds  the  same  as 
the  true  name,  or,  in  technical  language,  if  the  two  are  idem 
sonantia,  the  indictment  is  sufficient.  Thus  in  an  indictment 
for  forging  the  name  McNicole,  a  forgery  of  the  name  McNicoU 
may  be  shown.*  The  question  whether  two  names  are  idem 
sonaniia  is  for  the  jury.^ 

If  the  name  of  the  injured  person  is  unknown  to  the  grand 
jury,  it  may  be  so  stated,  and  the  indictment  is  sufficient ; 
though  if  this  is  done,  and  it  transpires  that  the  name  was 
known,  the  allegation  is  bad.*"  There  is  more  difficulty  where 
the  accused  refuses  to  give  his  name.  In  such  a  case,  he 
should  be  described  in  the  indictment  as  a  person  whose  name 
is  unknown,  but  who  was  personally  brought  before  the  jurors 
by  the  keeper  of  the  jail." 

If  one  is  described  by  a  name  by  which  he  is  actually 
known,  it  is  sufficient,  though  it  is  not  his  true  name.^  If, 
however,  a  person  is  known  by  two  names,  the  ordinary  and 
safer  course  is  for  both  to  be  alleged ;  as,  John  Jones,  alias 
John  Smith. 

1  C.  V.  Gillon,  2  All.  (Mass.)  502. 

2  Reg.  V.  James,  2  Cox  C.  C.  227. 

3  C.  I'.  Perkins,  1  Pick.  (Mass.)  388. 

4  Reg.  V.  Wilson,  2  Cox  C.  C.  426. 

6  C.  V.  Donovan,  13  All.  (Mass.)  571. 
^  C.  V.  JNIorse,  14  Mass.  217. 

7  Rex  V. ,  Russ.  &  Ry.  489. 

8  Rex  V.  Norton,  Russ.  &  Ry.  510;  C.  v.  Desmarteau,  16  Gray  (Mass.), 
1,17. 


Sects.  104,  105.]  OF   CRIMINAL  PROCEDURE.  99 

A  variance  in  the  name  of  a  person  other  than  the  defendant 
is  fatal,  and  entitles  the  defendant  to  an  acquittal  on  the  in- 
dictment. A  variance  in  the  name  of  the  defendant  is  not, 
however,  a  fatal  defect,  since  the  fact  tried  is  the  guilt  of  the 
prisoner  actually  at  the  bar.  In  order  to  avail  himself  of 
such  a  defect,  the  defendant  must  plead  the  misnomer  in 
abatement.^ 

§  104.  Time.  — It  is  necessary  that  the  time  of  the  offence 
should  be  alleged  in  the  indictment ;  but  it  is  not  generally 
necessary  to  prove  the  time  as  laid.  It  is  enough  if  some 
time  is  proved  before  the  date  of  the  indictment,  and  within 
the  period  set  by  the  statute  of  limitations.^  The  time  of  a 
continuing  offence  may  be  charged  on  a  certain  day,  and  con- 
tinuing from  that  day  to  the  day  of  receiving  the  complaint.-^ 

If  however  time  is  material,  it  must  be  accurately  stated  ; 
for  instance,  where  the  crime  is  against  a  Sunday  law,*  or 
where  it  is  part  of  the  description,  as  the  date  of  a  newspaper 
in  which  a  libel  was  published.^  And  so  where  the  punish- 
ment of  an  offence  is  changed  by  statute,  one  cannot,  on  an 
indictment  laying  the  offence  before  the  new  statute,  be  con- 
victed of  an  offence  after  it.*"  So  the  time  laid  must  not  be 
impossible  or  absurd;  as,  for  instance,  a  time  later  than  the 
complaint  or  indictment,''  or  a  time  before  the  period  of 
limitation. 

§  105.  Place.  — As  has  been  seen,  the  place  of  the  offence 
must  be  stated,  in  order  to  show  the  venue  of  the  court.  It 
is  not,  however,  generally  necessary  to  prove  the  place  pre- 
cisely as  alleged;  any  place  may  be  proved  which  is  within 
tlie  venue  of  the  court.^ 

If  however  the  place  is  material,  as,  for  instance,  in  the 
case  of  burglary,  the  place  must  be  alleged  and  proved  with 

1  Turns  v.  C,  6  Uet.  (Mass.)  224,  235. 

2  P.  V.  Stocking,  50  Barb.  (N.  Y.)  573. 
8  C.  V.  Frates,  16  Gray  (Mass.),  236. 

4  S.  V.  Caverly,  51  N.  H.  416. 

6  C.  V.  Yarney,  10  Cash.  (Mass.)  402. 

«  C.  V.  ]\Ialoney,  112  INIass.  283. 

'  C.  V.  Doyle,  110  IMass.  103. 

8  c.  V.  Tolliver,  8  Gray  (Mass.),  386. 


100  CRIMINAL  LAW.  [Sects.  106,  107. 

the  greatest  accuracy.^  And  so  in  every  case  where  tlie  act 
is  local ;  such  as  maintaining  a  nuisance.^  The  place  is  also 
material  when  an  act  is  a  crime  only  when  committed  in  a 
certain  place,  as  within  ten  feet  of  the  higliway. 

Every  act  alleged  in  the  indictment  must  be  laid  at  a 
certain  time  and  place.  When  the  acts  were  simultaneous, 
the  ordinary  method  is  to  allege  that  they  were  done  then 
and  there.  This  form  of  words  is  not  necessary ;  but  such 
language  must  be  used  as  will  state  some  time  with  absolute 
certainty.^ 

§  106.  Description.  —  A  sufficient  description  must  be  given 
of  everything  as  to  which  a  material  allegation  is  made  in 
the  indictment.  Thus,  all  property  must  be  described  as 
owned  by  some  one,  either  the  general  or  the  special  owner.* 
The  name  ordinarily  used  to  describe  a  thing  is  sufficient ; 
but  if  it  is  ordinarily  known  by  a  specific  name,  it  is  not 
enough  to  describe  it  by  the  name  of  the  material  of  which 
it  is  made.  For  instance,  an  ingot  of  tin  or  a  bar  of  iron  may 
be  described  as  tin  or  iron,  but  cloth  must  be  called  cloth,  not 
wool ;  and  a  coin  or  a  cap  must  be  so  described,  and  not 
as  such  a  weight  of  silver.^ 

§  107.  Words.  —  Whenever  an  offence  consists  of  words 
written  or  spoken,  these  words  must  be  stated  in  the  indict- 
ment with  exactness  ;  any  omission  is  a  defect  of  substance.^ 
A  mere  literal  variance,  however,  which  does  not  affect  the 
meaning,  is  not  fatal ;  such,  for  Instance,  as  the  misspelling  of 
a  name,  where  the  two  forms  are  idem  sonantia. 

Wiiere  the  words  are  obscene,  it  is  held  in  this  country  that 
they  need  not  be  spread  u|)on  the  records ;  it  is  enough  to 
describe  them  in  general  terms,  and  ex|)lain  the  reason  of 
omitting  tliem.^     In  England,  however,  this  is  not  allowed.^ 

1  Rex.  V.  Xapper,  1  ;\Ioo.  C.  C.  44. 

2  C.  V.  Heffion,  102  Mass.  148. 

3  Arch.  Ciim.  Plead  ,  19th  ed.  .51. 

4  C.  V.  Morse,  14  Mass.  217. 

5  Reg.  V.  Mansfield,  Car.  &  :M.  140. 

«  Bradlaugh  v.  Reg.,  3  Q.  B.  Div.  6C7,  616,  617. 

T  C.  V.  Holtnes.  17  Mass.  336. 

8  Biadlaugh  c.  iiktg.,  3  Q.  B.  Div.  616. 


Sects.  108,  109.]  OF  CRIMINAL  PROCEDURE.  101 

The  rule  applies  to  spoken  as  well  as  to  written  words, 
where  they  are  the  gist  of  the  offence.  But  where  words 
complained  of  are  not  the  gkt  of  the  offence  but  only  the 
means  of  committing  it,  as  in  the  case  of  a  prosecution  for 
threats,  they  need  not  be  set  out  with  technical  accuracy.^ 

§  108.  Contracts  and  Written  Instruments.  —  When  it  is 
material  in  the  course  of  an  indictment  to  allege  the  making 
or  the  existence  of  a  contract,  or  of  any  written  instrument, 
the  writing  or  the  contract  must  be  set  out  exactly ;  and 
if  it  is  an  instrument  that  has  a  specific  name,  that  name 
must  be  given  to  it,  otherwise  the  indictment  is  repugnant, 
and  fatally  defective.^ 

§  109.  Indictments  upon  Statutes.  —  Where  an  indictment  is 
brought  for  breach  of  a  criminal  statute,  it  must  conclude 
with  the  allegation  that  the  act  was  against  the  form  of  the 
statute  {contra  formam  statuti)  in  that  case  made  and  pro- 
vided.^ If  the  indictment  states  a  common  law  crime,  the 
allegation  that  it  is  contra  formam  statuti  may  be  rejected  as 
surplusage.^  It  is  therefore  always  safe  to  conclude  with  that 
allegation. 

Where  the  enacting  clause  of  a  criminal  statute  describes 
the  offence  and  makes  certain  exceptions,  it  is  necessary  in 
the  indictment  to  negative  the  exceptions  ;  but  where  excep- 
tions are  contained  in  a  separate  clause  or  proviso,  they  need 
not  be  mentioned  in  the  indictment.^  " 

It  is  not  always  sufficient  for  the  indictment  to  follow  the 
language  of  the  statute.  As  has  been  seen,  the  statute,  must 
be  interpreted  with  relation  to  the  common  law ;  and  may 
omit  certain  elements  of  the  crime  which  the  common  law 
supplies.*^  Again,  a  certain  specific  intent  is  sometimes 
required  in  statutory  crimes,  though   not  mentioned  in  the 

1  C.  V.  Maiphy,  12  All.  (Mass.)  449;  C.  v.  Goodwin,  122  Mass.  19, 
33. 

2  C.  r.  Lawless,  101  :\Iass.  32. 

3  C.  V.  Springfield,  7  Mass.  9. 

*  C.  V.  Reynolds,  14  Gvay  (Mass.),  87. 

5  Beasley  V.  P.,  89  111.  571  ;  C.  v.  Maxwell,  2  Pick.  (Mass.)  139;  Jeffer- 
son r.  P.,  101  X.  Y.  19,  3  X.  E.  797;  U.  S.  i-.  Cook,  17  Wall.  (U.  S.)  163. 

6  U.  S.  V.  Carll,  105  U.  S.  611. 


102  CRIMINAL  LAW.  [Sect.  110. 

statute.  This  intent  must  be  alleged  in  the  indictment.  So 
where  a  statute  forbade  the  removal  of  a  human  body  from  a 
grave,  this  was  held  to  mean  a  removal  for  purposes  of  dis- 
section, and  that  purpose  must  be  alleged  in  the  indictment;! 
and  an  indictment  for  keeping  open  shop  on  the  Lord's  day 
must  allege  that  the  shop  was  kept  open  for  business.^ 

In  many  cases  statutes  have  been  framed  with  the  evident 
purpose  of  extending  to  the  realty  that  protection  which  the 
common  criminal  law  extended  to  personalty.  In  these  cases 
the  indictment  must  show  that  the  property  alleged  to  have 
been  interfered  with  was  part  of  the  realty.  Thus,  an  in- 
dictment upon  a  statute  forbidding  the  removal  of  gravel 
from  land  must  allege  that  the  gravel  was  part  of  the  realty  ;3 
and  where  the  statute  forbids  the  malicious  destruction  of  glass 
in  a  building,  the  indictment  must  allege  that  the  glass  was 
part  of  the  building.* 

§  110.  Statutory  Forms  of  Indictment.  —  The  legislature  often 
prescribes  a  shortened  and  simplified  form  of  indictment ;  and 
such  action  is  often  salutary,  especially  in  the  case  of  indict- 
ments for  felony,  where  much  useless  verbiage  has  become  or 
has  seemed  to  be  necessary.  But  care  must  be  used  that  in 
shortening  the  form  of  indictment  no  necessary  allegations 
are  omitted  ;  for,  at  least  under  our  Constitutions,  an  indict- 
ment, though  authorized  by  statute,  is  bad  if  every  necessary 
element  of  crime  is  not  stated  in  it.  Thus,  a  statutory  form 
of  indictment  is  unconstitutional  if  it  omits  the  allegation  of 
a  specific  intent,^  or  if  it  charges  the  defendant  with  perjury 
before  a  certain  court  without  alleging  in  what  respect  he 
swore  falsely .*5  So  it  is  unconstitutional  to  provide  that  one 
may  be  more  heavily  punished  for  a  second  offence,  though 
the  former  conviction  is  not  alleged  in  the  indictment.^ 

1  C.  v.  Slack,  19  Pick.  (Mass.)  304. 

2'  C.  V.  Collins,  2  Cush.  (Mass.)  556. 

8  Bates  ^'.  S.,  31  Ind.  72. 

^  C.  V.  Bean,  11  Cush.  (Mass.)  414. 

6  S.  V.  Learned,  47  Me.  420. 

e  S.  V.  ]\Iace,  76  Me.  04. 

T  C.  V.  Ilairin-rton,  130  Mass.  35. 


Sects.  Ill,  112.]  OF  CRIMINAL  PROCEDURE.  103 

It  is  perfectly  constitutional,  however,  to  provide  for  a 
charge  of  crime  by  the  use  of  its  legal  name,  without  a  full 
description  of  it.  So  it  is  constitutional  to  indict  one  for 
committing  perjury  before  a  certain  court  by  giving  certain 
testimony,  without  alleging  that  the  testimony  was  false ;  for 
perjury  is  necessarily  false  swearing.^ 

JOINDER    OF    COUNTS    AXD    OFFENCES. 

§  111.  Duplicity.  —  Only  one  crime  may  be  stated  in  a 
single  count.  If  the  elements  of  more  than  one  crime  are 
included  in  a  count,  it  is  uncertain  which  crime  is  charged, 
and  the  accused  cannot  prepare  his  defence.^ 

Where,  however,  one  or  more  smaller  crimes  are  merged 
in  a  greater  crime  when  the  latter  is  committed,  the  indict- 
ment for  the  greater  crime  is  not  double  because  it  states  sucli 
elements  of  the  smaller  crimes  as  also  exist  in  tlie  greater. 
So  an  indictment  for  homicide  may  and  must  include  a  charge 
of  assault  and  of  battery;  and  an  indictment  for  burglary  may 
contain  a  charge  of  larceny,  and  must  include  one  of  attempt 
to  commit  larceny.^ 

Whether  duplicity  is  a  defect  of  form  or  of  substance  is 
doubtful.  The  better  opinion  seems  to  be  that  it  is  a  defect 
of  form  only,  and  therefore  that  it  cannot  be  taken  advantage 
of  after  verdict.  In  some  jurisdictions,  however,  it  is  held 
that  where  the  punishment  for  the  two  offences  which  are 
joined  is  different,  duplicity  is  a  fatal  defect,  even  after 
verdict.'^ 

§  112.  Conviction  of  Lesser  Offence.  —  When  the  crime  charged 
necessarily  embraces  a  lesser  offence  as  part  and  parcel  of  it, 
and  the  latter  is  described  in  the  indictment  with  such  dis- 
tinctness that  it  would  constitute  a  good  separate  indictuieiit 
for  that  offence,  the  accused,  under  the  indictment  cbarging 
the  greater  and  the  lesser,  may  be  found  guilty  of  the  latter. 

1  S.  i:  Corson,  59  INIe.  137. 

2  Rex  V.  Marshall,  1  i\Ioo.  C.  C.  158. 

3  C.  r.  Tuck,  20  Pick.  (Mass.)  356. 

*  Pteed  V.  P.,  1  Park.  (X.  Y.)  481;  P. ;;.  Wright,  9  Wend.  (X.  Y.)  193. 


104  CRIMINAL  LAW.  [Sects.  113,  J u. 

Thus,  on  an  indictment  for  an  assault  with  intent  to  mur- 
der, the  assault  being  well  charged,  and  the  intent  not  being 
proved,  the  defendant  may  be  found  guilty  of  an  assault. 
This  was  the  common  law  when  both  offences  were  of  the 
same  grade,  and  is  now  the  law  by  statute  in  England,  and 
very  generally  in  the  United  States,  when  the  offences  are 
of  different  grndcs.^ 

§  113.  Joinder  of  Counts  for  Same  Offence.  —  It  is  allow- 
able for  the  pleader  to  state  the  same  offence  in  different 
ways,  in  as  many  different  counts  to  one  indictment,  even 
though  the  punishment  is  different,  provided  the  counts  are 
all  for  felony  or  all  for  misdemeanor.^  At  common  law,  two 
counts  could  not  be  joined  in  the  same  indictment  where 
one  was  for  a  felony  and  the  other  for  a  misdemeanor  ;  for  the 
incidents  of  trial— as  to  challenges  of  jurors,  for  instance- 
were  different  in  the  two  classes  of  crime.  By  statute,  how- 
ever, this  has  almost  everywhere  been  done  away  with,  and 
felony  and  misdemeanor  may  be  joined.'^ 

When  a  trial  is  had  on  an  indictment  containing  several 
counts  for  the  same  offence,  a  general  verdict  of  guilty  is 
good  ;  or  the  defendant  may  be  found  guilty  on  one  count  and 
not  guilty  on  the  rest.  He  may  not,  however,  be  found  guilty 
on  two  counts,  and  not  guilty  on  others  ;  for  such  a  verdict 
would  be  inconsistent,  and  would  make  two  offences  out  of 

one.* 

A  misjoinder  of  counts  is  cured  by  a  verdict  for  the  defend- 
ant on  the  counts  improperly  joined.^  And  where  one  of  the 
counts  is  bad,  a  general  verdict  of  guilty  will  stand,  so  long 
as  there  is  a  valid  count  to  support  it.^ 

§114.  Joinder  of  Offences.  —  Two  or  more  counts  may  be 
joined  in  the  same  indictment,  even  for  different  offences, 

1  Reg.  V.  Bird,  5  Cox  C.  C  20;  C.  v.  Roby,  12  Pick.  (Mass.)  490;  1 
Bish.  Cr.  Law,  7tli  ed.,  §  809.       ' 

2  Beasley  v.  P.,  89  111.  57L 

^  So  in  Pennsylvania  by  the  common  law  :  Stevick  v.  C,  78  Pa.  460. 

<  C.  V.  Fitchbiirg  R.  R.  Co.,  120  Mass.  372. 

6  C.  i;.  Chase,  1-27  Mass.  7. 

«  Claasen  v.  U.  S.,  142  U.  S.  140,  and  cases  cited. 


Sects.  115,  116.]  OF  CRIMINAL  PROCEDURE.  105 

provided  they  are  of  the  same  general  nature,  and  subject  to 
the  same  sort  of  punishment;  and,  in  the  absence  of  statute, 
provided  they  are  all  felonies  or  all  misdemeanors.^  This 
liberty  is  liable  to  abuse ;  for  where  a  great  number  of  offences 
are  joined  in  a  single  indictment,  too  great  a  burden  is  put 
on  the  defendant  in  preparing  his  defence.  There  exists  no 
remedy  for  this  abuse,  however,  except  the  discretion  of  the 
court  to  order  the  prosecution  to  elect  on  which  count  or 
counts  it  will  proceed.^  This  is  more  often  done  in  the  case 
of  felony  tlian  of  misdemeanor.  In  fact,  it  seems  to  follow  of 
course  in  England  that  the  court,  on  request  of  the  defendant, 
siiould  compel  an  election  in  case  of  felony ;  but  it  is  never  a 
matter  of  course  in  a  case  of  misdemeanor. ^ 

§  115.  Cumulative  Sentence.  —  Where  an  indictment  cliarges 
different  offences  in  different  counts,  the  question  of  punish- 
ment is  a  difficult  one.  In  England  in  such  a  case  each  count 
is  held  to  be  a  separate  charge  of  crime  ;  and  sentence  is  im- 
posed upon  each  count,  that  on  the  second  count  to  begin  upon 
the  termination  of  the  sentence  on  the  first  count.*  In  New 
Yorlv,  however,  a  cumulative  sentence,  where  the  punishment 
of  each  crime  was  imprisonment,  was  held  void.^  The  argu- 
ment on  which  this  decision  was  based  would  seem  to  hold 
equally  good  where  the  punishments  are  all  fines  ;  yet  every 
court  would  probably  hold  it  proper  to  impose  a  separate  fine 
on  each  count  of  an  indictment.  The  English  decision  would 
seem  to  be  supported  by  the  most  valid  arguments. 

§  116.  Joinder  of  Defendants.  — Where  two  or  more  join  in 
tlie  commission  of  a  crime,  each  may  be  separately  indicted, 
or  all  may  be  joined  in  a  single  indictment ;  and  in  that  case 
they  may  be  tried  together,  and  one  found  guilty  while  an- 
other is  acquitted.^     The  defendants,  must,  however,  all  be 

•  1  C.  V.  Mullen,  150  Mass.  394,  23  N.  E.  51 ;  C.  v.  O'Connell,  12  Allen 
(Mass.),  451. 

2  C.  V.  Mullen,  cmte. 

8  Castro  V.  Reg.  6  App.  Gas.  229,  244. 

*  Castro  V.  Reg.  6  App.  Cas.  229. 

5  P.  r.  Liscomb,  GO  N.  Y.  559. 

6  2  Hawk.  P.  C,  c.  25,  §  89. 


106  CRIMINAL  LAW.  |-Sect.  117. 

guilty  of  the  same  offence ;  therefore,  all  must  be  principals 
or  all  accessories. 

It  lies  in  the  discretion  of  the  court,  where  two  defendants 
are  jointly  indicted,  to  try  them  separately ;  and  a  defendant 
cannot  object  to  the  exercise  of  this  discretion,  or  the  refusal 
to  exercise  it.^ 

DOUBLE    JKOPARDY. 

§  117.  No  One  Twice  to  Be  Put  in  Jeopardy.  —  It  is  a  well- 
settled  and  most  salutary  principle  of  criminal  law  tbat  no 
person  shall  be  put  upon  trial  twice  for  the  same  offence. 
This  old  doctrine  of  the  common  law  has  found  its  way  into 
the  Constitution  of  the  United  States,  and  into  that  of  most 
or  all  of  the  States,  in  different  forms  of  expression,  sul)stan- 
tially  that  no  person  shall  be  put  twice  in  jeopardy  of  life  or 
limb  for  the  same  offence.  The  meaning  of  this  is,  that  when 
a  person  has  been  in  due  form  of  law  put  upon  trial  upon  a 
good  and  sufficient  indictment,  and  convicted  or  acquitted, 
that  conviction  or  acquittal  may  be  pleaded  in  bar  to  a  subse- 
quent prosecution,  within  the  same  jurisdiction,  for  the  same 
offence.2  And  even  if  the  indictment  be  insufficient  and  the 
proceedings  be  irregular,  so  that  a  judgment  thereupon  might 
be  set  aside  upon  proper  process,  yet  if  the  sentence  thereunder 
has  been  acquiesced  in  by  and  executed  upon  the  convict, 
such  illegal  and  voidable  judgment  constitutes  a  good  plea  in 
bar.3  So  if  the  prisoner  be  sentenced  to  an  illegal  punish- 
ment —  as,  for  instance,  to  fine  and  imprisonment,  where  the 
law  authorizes  only  one  — after  part  execution  of  either,  he 
cannot  afterwards,  upon  a  revision  of  the  sentence,  even  dur- 
ing the  same  term  of  court,  be  punished  by  the  imposition  of 
the  lawful  punishment.^ 

The  trial  and  jeopardy  begin  when  the  accused  has  been 
arraigned  and  the  jury  empanelled  and  sworn.^ 

1  1  Bish.  Crim.  Proc,  M  ed.  §  1018. 

2  U.  S.  V.  Gibert,  2  Sumn.  (U.  S.  C.  Ct.)  19,  Fed.  Cas.  Xo.  15,  204 

3  C.v.  Loud,  3  Met.  (Mas.s.)  328. 

_  *  Ex  parte  Lange,  18    Wall.   (U.   S.)    163,  Clifford  and  Strong,  JJ. 
dissenting. 

5  Bryaus  v.  S.,  3i  Ga.  323;  C.  (•.  Tuck,  20  Pick.  (Mass.)  350 ;  Ferris  v. 
P.,  48  Barb.  (N.  Y.)  17. 


Sect,  lis.]  OF    CRIMINAL  PROCEDURE.  107 

Though  from  the  words  "jeopardy  of  life  or  Hmb  "  it  lias 
been  contended  that  the  rule  is  applicable,  where  such  words 
or  their  equivalent  are  used,  only  to  such  crimes  as  are  pun- 
ished liy  injury  to  life  or  limb,  yet  it  is  very  generally,  if  not 
universally,  held  by  the  courts  that  it  is  applicable  to  all 
grades  of  offences.^  It  is  not  only  for  the  interest  of  society 
that  there  should  be  an  end  of  controversy,  but  it  is  a  special 
hardship  that  an  individual  should  be  indefinitely  harrassed 
by  repeated  prosecutions  for  the  same  offence.  Where,  how- 
ever, the  same  act  constitutes  two  offences,  there  may  be  a 
punishment  for  each  offence.^  But  if  the  same  act  is  made  an 
offence  by  two  statutes,  creating  different  offences  in  name 
but  designed  to  prevent  the  same  crime,  the  offender  cannot 
be  convicted  under  both  statutes.^ 

§  118.  So  firmly  is  this  doctrine  established,  that  the  gov- 
ernment will  not  be  allowed  to  institute  a  second  prosecution, 
or  put  the  prisoner  to  a  new  trial,  even  though  his  acquittal 
is  consequent  upon  the  judge's  mistake  of  law,  or  the  jury's 
disregard  of  fact.  If,  however,  he  be  convicted  by  a  misdirec- 
tion of  the  judge  in  point  of  law,  or  misconduct  on  the  part  of 
the  jury,  he  may  by  proper  process  have  the  verdict  set  aside  ; 
in  which  case,  the  trial  not  having  been  completed,  and  the 
verdict  having  been  set  aside,  at  his  request,  the  accused  may 
be  again  set  to  the  bar."^ 

To  give  the  accused,  therefore,  a  good  plea  that  he  has  once 
been  put  in  jeopardy,  it  must  appear  that  he  was  put  upon 
trial  in  a  court  of  competent  jurisdiction,  upon  an  indictment 
upon  which  he  might  have  been  lawfully  convicted  of  the 
crime  charged,  and  before  a  jury  duly  empanelled,  and  that, 
without  fault  on  his  part,  he  Avas  convicted  or  acquitted,  or 
that,  if  there  was  no  verdict,  the  jury  were  unlawfully  dis- 
charged.    And  the  jury  may  be  discharged  before  verdict  is 

1  I  Bish.  Cr.  Law,  §  990. 

2  S.  V.  Illness,  53  Me.  536;  C.  r.  McShane,  110  ]\Iass.  502. 

3  Wemyss  v.  Hopkins,  L.  R.  10  Q.  B.  378. 

*  Reg.  V.  Drury,  3  Car.  &  K.  193;  Reg.  v.  Deane,  5  Cox  C.  C.  501 :  C. 
V.  Green,  17  Mass  515;  C.  o.  Sholes,  13  All.  (Mass.)  551;  P.  v.  M'Kay, 
18  Johns.  (N.  Y.)  212. 


108  CRIMINAL  LAW.  [Sect.  119. 

rendered  when,  in  the  judgment  of  the  court,  there  is  a  clear 
necessity  therefor,  or  the  ends  of  justice  will  otherwise  be 
defeatecl  ;  as  where  the  term  of  court  expires  before  a  verdict 
is  reached  ;  or  the  jury,  after  sufficient  deliberation,  of  which 
the  court  is  the  judge,  cannot  agree  ;  or  the  trial  is  interrupted 
by  the  sickness  or  death  of  judge  or  juror;  or  the  jury  is  dis- 
charged by  the  consent  of  the  prisuner.i  So  much  of  the 
learned  opinion  of  Judge  Story,  in  United  States  v.  Gibert,^ 
as  holds  that  no  new  trial  can  be  had  in  cases  of  felony, 
is  now  generally,  if  not  universally,  regarded  as  unsound  law.^ 
If  the  accused  procure  a  conviction  by  fraud,  it  will  not  avail 
him  as  a  plea  in  bar,  this  being,  within  the  above  rule,  by  his 
fault.*  So  if,  after  a  trial,  the  prisoner  fails  to  appear  when 
the  jury  return  with  their  verdict,  and  no  verdict  is  rendered, 
no  trial  is  completed,  and  the  accused  may  be  put  on  trial 
again.  And  if  the  court  before  whom  the  accused  was  for- 
merly tried  had  no  jurisdiction,  there  has  been  no  jeopardy.^ 

§  il9.  Prosecution  by  Another  Sovereignty.  —The  rule  does 
not  protect  from  prosecution  by  another  sovereignty,  if  the 
same  act  is  a  violation  of  its  law,  as  the  laws  of  a  country,  and 
especially  the  criminal  laws,  have  no  extra-territorial  efficacy. 
If,  therefore,  one  sovereignty  has  punished  an  act  whicli  was 
also  a  violation  of  the  law  of  another  sovereignty,  the  latter 
has  the  right,  in  its  discretion,  also  to  punish  the  act.^  Doubt- 
less, however,  in  such  case,  the  fact  of  prior  punishment  would 
have  great  weight  in  determining  whether  the  guilty  party 
should    be   again  punished    at  all,    or    if    punished,    to   what 

1  See  Reg.  v.  Bird,  5  Cox  C.  C.  20  ;  McNeil  v.  S.,  47  Ala.  498;  8.  o. 
Wilson,  50  Ind.  487;  S.  v.  Vaughan,  29  Iowa,  286;  C.  i'.  Roby,  12  Pick. 
(Mass.)  490;  Guenther  v.  P.,  24  N.  Y.  100;  S.  v.  Jefferson,  GO  N.  C.  309  ; 
Mines  y.  S.,  24  O.  St.  134;  Ex  parte  Lange,  18  Wall.  (U.  S.)  163; 
Simmons  v.  U.  S.,  142  U.  S.  148. 

2  2  Sumner  C.  Ct.  19,  Fed.  Cas.  No.  15,204. 

^  Ex  parte  Lange,  ante,  dissenting  opinion  of  Clifford,  J. 

4  S.  V.  Battle,  7  Ala.  259;  C.  i'.  Alderman,  4  ]\Iass.  477;  C.  v.  Das- 
com,  111  Mass.  404;  S.  v.  Cole,  48  Mo  70;  S.  v.  Lowry,  1  Swan  (Tenn.),  34. 

=  Reg.  1-.  Bowman,  6  C.  &  P.  337;  C.  v.  Peters,  12  Met.  (Mass.)  387; 
P.  r.  Barrett,  1  Johns.  (N.  Y.)  66. 

«  Phillips  V.  P.,  55  III.  429;  U.  S.  v.  Amy,  14  Md.  110,  n.;  C.  v. 
Green,  17  Mass.  515 ;    S.  v.  Brown,  1  Ilayw.  (N.  C)  100;  ante,  §  83. 


Sect.  120.]  OF  CRIMINAL  PROCEDURE.  109 

i  degree.^  It  has  been  said  by  high  authority,'-^  that  a  conviction 
under  one  sovereignty  of  piracy,  which  is  an  oti'ence  against 
all  sovereignties,  would  doubtless  be  recognized  in  all  other 
civilized  countries  as  a  good  plea  in  bar  to  a  second  [irosccu- 
tion.  When  there  are  two  sovereignties  having  jurisdiction 
within  the  same  geographical  limits,  there  can  bo  no  doubt 
that  one  act  may  constitute  a  crime  against  both,  and  be  pun- 
ishable by  both.  Thus,  an  assault  upon  an  officer  of  the 
United  States,  while  acting  in  the  discharge  of  his  duty  within 
the  limits  of  a  State,  may  be  punished  by  the  State  as  an  as- 
sault, and  by  the  United  States  as  an  assault  upon  its  officer 
in  the  discharge  of  his  duty,—  a  higher  offence.^  So  it  has 
been  held  that  the  same  act  may  be  a  violation  of  a  city 
charter  and  the  penal  law  of  the  State.*  But  the  better  view 
seems  to  be  that  in  such  a  case  there  is  only  one  offence,  and 
can  be  but  one  punishment.'^ 

§120.  What  Is  the  Same  Offence.  —  Where  there  has  been 
an  acquittal  for  variance,  a  new  indictment  will  lie,  in  which 
the  ci'ime  is  correctly  described.  The  two  offences  are  not 
identical.'^  So  where  formerly  the  venue  was  wrongly  stated  ;" 
or  the  property  alleged  to  have  been  injured  was  wrongly  de- 
scribed ;  ^  or  a  murder  was  alleged  to  have  been  committed  by 
shooting,  where  the  evidence  showed  it  was  done  by  beating.^ 
The  same  is  true  where  the  act  is  described  as  a  different 
crime,  having  been  wrongly  described  before  ;  as  where  one 
acquitted  of  larceny  is  indicted  for  receiving  stolen  goods,^^  or 
one  acquitted  of  a  crime  as  principal  is  indicted  as  accessory. ^^ 
The  test  is  this  :  whether,  if  what  is  set  out  in  the  second  in- 

^  U.  S.  V.  Amy,  ante. 

2  U.  S.  V.  Pirates,  5  Wheat.  (U.  S.)  184. 

8  IMoore  v.  Illinois,  14  How.  (U.  S.)  13. 

*  Ambroses.  S.,  6  lud.  351. 

6  Preston  v.  P.,  45  Mich.  486,  8  N.  W.  96;  S.  v.  Thornton,  37  Mo.  360. 

6  C.  V.  Chesley,  107  Mass.  223. 

^  C.  V.  Call,  21  Pick.  (Mass.)  509. 

8  C.  r.  Wade,  17  Pick.  (Mass.)  395. 

9  Guedel  v.  P.,  43  111.  226. 

i»  C.  V.  Tenney,  97  Mass.  50. 

11  Rex  V.  Plant,  7  C.  &  P.  575 ;  Reynolds  v.  P.,  83  111.  479. 


110  CRIMINAL   LAW.  [Sects.  121,  122. 

dictment  had  been  proved  under  the  first,  there  could  have 
been  a  conviction.^ 

§  121.  Prior  Conviction  of  Less  Degree  of  Same  OiFence.  — 
Where  one  is  tried  on  an  indictment  consisting  of  several 
counts,  and  is  acquitted  on  some  counts  and  convicted  on 
others,  and  secures  a  new  trial,  lie  cannot  again  be  tried  on 
those  counts  on  which  he  has  been  acquitted.^  Where  he  is 
found  guilty  of  a  less  degree  of  crime  than  that  charged,  as 
when  on  an  indictment  for  murder  he  is  found  guilty  of  man- 
slaughter, and  secures  a  new  trial,  he  cannot,  according  to  the 
weight  of  authority,  be  again  convicted  of  a  higher  crime  than 
that  of  which  he  was  formerly  convicted  ;  for  conviction  of  the 
lower  crime  involves  an  acquittal  of  the  higher.^ 

§  122.  Greater  or  Less  Offence.  —  As  to  the  effect  of  a  former 
acquittal  of  an  offence  which  includes,  or  is  part  of,  another 
offence,  there  is  some  confusion,  not  to  say  difference,  amongst 
the  authorities.  But  the  following  is  believed  to  be  a  fair 
statement  of  the  result.  Where  a  person  has  been  tried  for 
an  offence  which  necessarily  includes  one  or  more  others  of 
which  he  might  have  been  convicted  under  the  indictment,  he 
cannot  be  afterwards  tried  for  either  of  the  offences  of  which 
he  might  have  been  convicted  under  the  indictment  on  which 
he  was  tried.*  Thus,  if  the  trial  is  upon  an  indictment  for  as- 
sault and  battery,  it  cannot  be  afterwards  had  upon  an  indict- 
ment for  an  assault.  On  an  indictment  for  an  offence  which 
is  part  and  parcel  of  a  greater,  a  previous  trial  for  the  lesser 
is  not  a  bar  to  a  subsequent  trial  for  the  greater,  unless  some 
decisive  fact  is  necessarily  passed  upon  under  the  first  indict- 
ment, in  such  a  way  as  to  amount  to  an  effectual  bar  to  the 
second.^     A  conviction  or  acquittal,  in  order  to  be  a  bar  to  a 

1  2  East  P.  C.  522;  1  Bish.  Crim.  Law,  7th  ed.,  §  1052;  Rex  i:  Taylor, 
3  B.  &  C.  502  ;  U.  S.  v.  Nickerson,  17  How.  (U.  S.)  20i. 

2  S.  V.  Kattlemann,  35  Mo.  105, 

8  Slaughter  v.  S.,  6  Humph.  (Term.)  410  ;  S.  v.  Belden,  83  Wis.  120; 
contra,  S.  v.  Behimer,  20  O.  St.  572.  See  the  authorities  collected, 
Wharton,  Crim.  Plead.,  9th  ed.,  §  405. 

*  Keg.  V.  Gould,  0  C.  &  P.  364  ;  P.  v.  M'Gowan,  17  Wend.  (X.  Y.) 
386. 

6  Reg.  V.  Bird,  5  Cox  C.  C.  20. 


Sect.  122.]  OF   CRIMINAL  PROCEDURE.  Ill 

subsequent  prosecution  in  such  a  case,  must  be  for  the  same 
offence,  or  for  an  offence  of  a  higher  degree,  and  necessarily 
including  the  offence  for  which  the  accused  stands  a  second 
time  indicted.  Thus,  a  conviction  under  an  indictment  for 
assault  is  no  bar  to  an  indictment  for  assault  with  intent  to 
rob,  because  the  prisoner  has  never  been  tried  on  an  indict- 
ment whicli  involves  an  issue  conckisive  upon  the  second 
charge.  On  the  other  hand,  if  one  be  acquitted  on  an  indict- 
ment for  manslaughter,  he  cannot  afterwards  be  tried  for 
murder,  because  the  acquittal  necessarily  involves  the  finding 
the  issue  of  killing,  wliether  with  or  without  malice,  in  favor 
of  the  defendant.  1  And  this  would  be  true,  even  if  the  judge 
should  discharge  the  jury  on  tlic  ground  that  the  proof  made 
the  case  one  of  murder.^  And  the  same  is  true  v/here  the 
prisoner  was  formerly  tried  for  a  less  serious  degree  of  larceny 
or  of  house-burning  than  that  now  charged.^  The  offence  is 
the  same  if  the  defendant  might  have  been  convicted  on  the 
first  indictment  by  proof  of  the  facts  alleged  in  the  second. 
The  question  is  not  whether  the  same  facts  are  offered  in  proof 
to  sustain  the  second  indictment  as  were  given  in  evidence  at 
the  trial  of  the  first,  but  whether  the  facts  are  so  combined  and 
charged  in  the  two  indictments  as  to  constitute  the  same  of- 
fence. It  is  not  sufficient  that  the  facts  on  which  the  two  in- 
dictments are  based  are  the  same.  They  must  be  so  alleged 
in  both  as  to  constitute  the  same  offence  in  degree  and 
kind.* 

A  conviction  or  acquittal  on  a  charge  of  larceny  of  one  of 
several  articles,  all  stolen  at  the  same  time,  is  a  good  plea  in 

1  S.  V.  Foster,  33  la.  525 ;  Scot  v.  U.  S.,  IMorris,  142. 

2  P.  V.  Huiickeller,  48  Cal.  331.  See  also  upon  the  general  subject,  as 
involving  the  different  views  of  different  courts,  Wilson  v.  S.,  24  Conn.  57  ; 
Roberts  v.  S.,  14  Ga.  8;  S.  v.  Inness,  53  Me.  536;  C.  v.  Hardiman,  9  Allen 
(Mass.),  487  ;  S.  v.  Pitts,  57  Mo.  85;  S.  v.  Cooper,  1  Green  (N.  J.)  361 ; 
S.  V.  Nutt,  28  Vt.  598;  and  1  Bish.  Cr.  Law,  c.  63,  where  the  whole  sub- 
ject is  treated  with  great  fulness. 

3  C.  V.  Squire,  1  Met.  (Mass.)  258. 

*  Rex  V.  Vanderconib,  2  Leach  (4th  ed.)  708;  Durham  v.  P.,  4  Scam. 
(111.)  172  ;  C.  I'.  Clair,  7  Allen  (Mass.)  525  ;  P.  v.  Warren,  1  Park.  (N.  Y.) 
C.  R.  338. 


112  CRIMINAL   LAW.  [Sects.  123,  124. 

bar  of  any  subsequent  prosecution  for  tbe  larceny  of  eitber  or 
all  of  tbe  otber  articles.^ 

An  exception,  however,  exists  in  tbe  case  of  murder.  Where 
the  prisoner  was  formerly  tried  for  an  assault,  and  convicted, 
if  the  party  assaulted  afterwards  dies  from  tbe  assault,  the 
prisoner  may  be  tried  for  the  murder,  and  his  former  jeopardy 
will  not  avail  him.^  And  an  acquittal  of  an  assault  with  in- 
tent to  kill  the  party  who  afterwards  dies  from  tlie  assault  will 
not  necessarily  protect  tbe  accused,  since  murder  may  be 
committed  without  any  intent  to  kill,  and  even  without  a  crim- 
inal assault.^ 

§  123.  Practice.  —  If  a  plea  of  former  acquittal  or  conviction 
to  an  indictment  for  a  misdemeanor  be  found,  on  replication 
or  demurrer,  against  the  prisoner,  be  might  be  sentenced  with- 
out a  trial  for  the  offence  itself  ;  ^  but  upon  tbe  decision  against 
the  prisoner  in  such  a  case,  on  an  indictment  for  felony,  be 
might  answer  over,  and  have  his  trial  upon  the  merits.  Tbis 
is  not,  iiowever,  the  rule  in  tbis  country,  where  tbe  [)risoner  is 
usually  allowed  to  have  his  trial  in  both  cases,  as  a  matter  of 
right,  if  in  his  plea  he  reserves  the  right  to  plead  over.^  In 
Tennessee,  it  has  been  said  to  be  a  matter  of  discretion  with 
the  court.^ 

EVIDENCE    IN    CRIMINAL    CASES. 

§  124.  Burden  of  Proof.  —  The  rules  of  evidence  applicable 
in  criminal  cases  are  substantially  tbe  same  as  in  civil  cases, 
with  the  single  exception  that  in  a  criminal  case  every  essential 
allegation  made  by  the  prosecution  must  be  proved  beyond  a 
reasonable  doubt,  in  order  to  entitle  the  government  to  a  ver- 

1  Jackson  v.  S.,  14  Ind.  327.  See  also  Fisher  r.  C,  1  Bush  (Ky.)  211; 
Guenther  v.  P.,  24  N.  Y.  100. 

2  Reg.  V.  Morris,  10  Cox  C.  C.  480;  S.  v.  Littlefiekl,  70  Me.  4.52  ;  C.  i'. 
Roby.  12  Pick.  (Mass.)  4'96. 

8  Reg.  V.  Salvi,  10  Cox  C.  C.  481,  n. 

4  Reg.  V.  Bird,  2  Eng.  L.  &  Eq.  530,  5  Cox  C.  C.  20. 

6  S.  V.  Dresser,  54  Me.  569;  C.  i^.  Goddard,  13  Mass.  455;  Ross.  v.  S., 
9  Mo  Om  ■  Barge  v.  C,  3  P.  &  W.  (Pa.)  262  ;  U.  S.  v.  Conant,  C.  Ct. 
Mass.,  Fed.  Cas.  No.  14,843. 

«  Bennett  v.  S.,  2  Yerg.  (Teun.)  472. 


Sect.  124.]  OF  CRIMINAL   PROCEDURE.  113 

diet.     If  upon  all  the  evidence  introduced  by  the  government 
and  by  the  accused  there  results  a  reasonable  doubt  upon  any 
essential  allegation  in  the  indictment  or  complaint,  the  crim- 
inal is  entitled  to  an  acquittal.     Upon  all  these  issues,  there- 
fore, he  has  only  to  raise  a  reasonable  doubt.     When,  however, 
the  accused  sets  up  in  defence  a  distinct  and  independent  fact, 
not  entering  into  these  issues,  he  must  prove  it  by  a  prepon- 
derance of  evidence.     Thus,  if  the  defence  be  insanity,  the 
better  view  is,  that,  since  it  is  a  part  of  the  case  of  the  prose- 
cution  that   the  accused  was   sane,  it  is    necessary  for  the 
accused  to  produce,  or  that  there  should  appear  in  the  case 
upon  all  the  evidence  introduced,  only  so  much  evidence  of 
insanity  as  to  induce  a  reasonable  doubt  on  the  issue,  in  order 
to  secure  his  acquittal. ^     If,  on  the  other  hand,  the  defence  be 
a  former  acquittal,  since  this  is  a  new,  distinct,  and  independ- 
ent fact,  in  no  way  embraced  in  the  allegations  of  the  prose- 
cution, the  accused  assumes  the  burden  of  proof,  and  must 
establish  the  fact  by  a  preponderance  of  evidence.     In  civil 
cases,  each  party  takes  the  burden  of  proof  of  the  facts  alleged 
essential  to  make  out  his  case,  and  may  establish  them  by  a 
preponderance  of  proof.^     Criminal  cases  to  which  the  rule 
of  proof  beyond  reasonable  doubt  applies  are  such  only  as  are 
criminal  in  form,  and  cognizable  by  a  court  administering  the 
criminal  law.     If  the  question  whether  a  crime  has  been  com- 
mitted arises  in  a  civil  case,  tried  by  a  court  administering 
the  civil,  as  contra-distinguished  from  the  criminal  law,  the 
rule  of  evidence  applicable  in  the  civil  courts  prevails.     Thus, 
in  an  indictment  for  an  assault,  the  prosecution  must  prove 
the  assault  beyond  a  reasonable  doubt ;  while,  in  a  civil  action 
for  damages  for  the  same  assault,  the  plaintiff  is  only  required 
to  prove  it  by  a  preponderance  of  evidence. 

The  general  test  of  a  criminal  case  is  that  it  is  by  indict- 
ment, and  of  a  civil  case  that  it  is  by  action.  But  the  decisions 
upon  this  point  are  not  uniform.^ 

1  Ante,  §  45. 

2  See  1  Greenl.  Ev.  (13tli  ed.),  §§  81  «,  81  6  ;  2  Greenl.  Ev.,  §  29,  n.; 
Steph.  Dig.  of  the  Law  of  Ev.  (May's  ed.),  p.  40,  n.;  10  Am.  L.  Rev., 
pp.  f342  et  seq.;  Kane  v.  Hibernia  Ins.  Co.,  10  Vroom  (N.  J.)  097. 

8  The  cases  are  very  fully  collected  in  1  Dish.  Cr.  Law,  §§  32,  33. 


114  CRIMINAL   LAW.  [Sects.  125-127. 

§  125.  Doubt  as  to  Interpretation. — If  it  be  fairly  doubtful 
whether  the  crime  charged  comes  within  the  purview  of  a 
statute,  it  has  been  frequently  said,  the  prisoner  is  entitled 
to  the  benefit  of  the  doubt.^  But  it  has  also  been  held  that 
it  is  not  the  duty  of  the  court  to  instruct  the  jury  that,  if  they 
have  a  reasonable  doubt  as  to  the  law  or  the  applicability  of 
the  evidence,  they  must  give  the  prisoner  the  benefit  of  the 
doubt.'-^  And  perhaps  it  is  only  a  court  of  last  resort,  if  any, 
which  should  give  the  prisoner  that  benefit.^ 

It  is,  however,  a  universal  rule  of  construction,  that  all 
penal  and  criminal  laws  shall  be  construed  strictly  in  favor 
of  the  life,  liberty,  and  property  of  the  citizen. ^ 

§  126.  Corpus  Delicti.  —  There  must  be  clear  proof  of  the 
corpus  delicti^  that  is,  of  the  fact  that  a  crime  has  been  com- 
mitted.^ Were  this  not  required,  the  danger  of  conviction 
in  cases  where  no  crime  had  in  fact  been  committed  would 
be  great.  But  this  fact,  like  any  other,  may  be  proved,  by  a 
proper  amount  of  circumstantial  evidence ;  ^  it  must,  however, 
be  so  proved  beyond  reasonable  doubt." 

§  127.  Testimony  of  Defendant.  —  At  common  law  the  de- 
fendant was  not  allowed  to  testify  in  his  own  behalf.  This 
has  been  changed  in  this  country  by  statute,  and  a  defendant 
may  if  he  chooses  testify  on  his  own  behalf.  By  all  our  Con- 
stitutions, however,  a  witness  cannot  be  compelled  to  testify 
against  himself ;  consequently  the  prosecution  cannot  call 
upon  the  defendant  to  take  the  stand. 

It  is  provided  in  some  States  that,  if  the  accused  docs  not 
testify,  no  inference  can  be  drawn  against  him.     Even  where 

1  U.  S.  V.  AVhittier,  Dillon,  J.  6  Reptr.  2G0,  Fed.  Cas.  No.  1G,6SS, 
and  cases  there  cited. 

2  O'xXeil  V.  S.,  48  Ga.  66. 
8  Cook  V.  S.,  11  Ga.  53. 

4  C.  V.  Barlow,  4  Mass.  439. 

5  2  Hale  P.  C.  290;  Best,  Evid.  (Chamberlayne's  ed.),  §  441  ;  Rex  v. 
Burdett,  4  B.  &  Aid.  95,  123,  162  ;  P.  v.  Palmer,  109  X.  Y.  110,  16  N.  E. 
529;  "Willard  v.  S.,  27  Tex.  App.  386  ;  S.  v.  Davidson,  30  Vt.  377. 

6  Stocking  r.  S.,  7  Ind.  326;  S.  v.  Cardelli,  19  Nev.  319,  10  P.  433; 
U.  S.  V.  Williams,  1  Cliff  C  C.  5,  Fed.  Cas.  No.  16,707. 

7  Lee  V.  S.,  76  Ga.  498 ;  Gray  v.  C,  101  Pa.  380. 


Sect.  128.]  OF  CRIMINAL  PROCEDURE.  115 

this  provision  is  not  made,  it  would  seem  unfair  to  draw  such 
an  inference,  especially  in  view  of  the  constitutional  provision. ^ 
It  has  however  been  held  in  such  a  case  that  the  refusal  of 
the  accused  to  testify  may  be  used  against  him.'-^ 

If  the  accused  goes  on  the  stand,  the  better  view  is  that  he 
has  waived  his  constitutional  privilege,  and  may  be  compelled 
to  answer  any  questions  pertinent  to  the  issue,'^  though  not 
questions  which  are  asked  merely  to  affect  the  credibility 
of  the  witness.^  Some  authorities,  however,  hold  that  a 
defendant  who  has  become  a  witness  can  claim  his  privilege 
at  any  time,  though  if  he  does  so  unfavorable  inferences  may 
be  drawn. ^ 

If  the  evidence  of  the  defendant  is  weak  and  unsatisfactory, 
the  same  inferences  may  be  drawn  as  in  the  case  of  any 
witness.^ 

§  128.  Confessions.  —  The  genius  of  the  common  law  looks 
with  disfavor  upon  any  attempt  to  prove  one  guilty  of  crime 
by  his  own  testimony  ;  and  even  a  confession  of  guilt  by  the 
accused  is  received  in  evidence  only  under  certain  conditions. 
The  confession  must  be  entirely  voluntary.  If  it  was  made 
under  duress,  or  by  reason  of  a  threat  or  promise  of  favor  by 
one  in  authority,  it  is  not  admissible.^  Such  confessions  are 
not  rejected  because  of  the  breach  of  faith,  but  because  a 
confession  gained  by  such  means  is  untrustworthy.^  It  must 
appear,  therefore,  that  the  confession  was  induced  by  the 
threat  or  promise,  and,  it  would  seem,  that  the  circumstances 
were  such  that  the  accused  would  be  likely  to  tell  an  untruth 
from  fear  or  hope  induced  by  those  in  authority.^ 

1  P.  1-.  Tyler,  36  Cal.  522. 

2  S.  I'.  Bartlett,  55  Me.  200. 

3  C.  V.  Nichols,  114  Mass.  235  ;  C.  v.  ToUiver,  119  Mass.  312;  Connors 
V.  P.,  50  N.  Y.  2i0. 

4  P.  V.  Brown,  72  N.  Y.  571. 
6  Cooley,  Const.  Limit.,  *317. 
6  Stover  I'.  P.,  56  N.  Y.  315. 

T  Warickshall's  Case,  1  Leach  C.  C.  263. 

8  Reg.  V.  Baldry,  2  Den.  C.  C.  430;  C.  r.  Knapp,  9  Pick.  (Mass.)  495. 

9  Reg.  V.  Jarvis,  L.  R.  1  C.  C.  96;  Reg.  v.  Reeve,  L.  R.  1  C.  C.  362; 
C.  V.  Cuffee,  103  Mass.  235. 


116  CRIMINAL  LAW.  [Sect.  128. 

It  seems  to  be  doubtful  whether  court  or  jury  is  to  decide 
on  the  question  of  threat  or  promise.  As  a  question  involving 
the  admissibility  of  evidence,  it  would  seem  moi'e  properly  to 
be  a  question  for  the  court ;  ^  but  it  is  often  held  that  the 
question  should  be  left  to  the  jury .2 

If  the  confession  was  in  fact  voluntarily  made,  it  is  admis- 
sible, though  given  without  any  reference  to  the  present  pro- 
ceedings, and  even  under  a  misapprehension.  Thus,  testimony 
voluntarily  given  at  a  fire  inquest,^  or  at  a  former  trial,*  is 
admissible ;  and  so  is  a  confession  made-  to  officers  who  had 
arrested  the  accused  illegally.^  And  this  is  true,  although  the 
confession  was  made  without  knowledge  of  the  constitutional 
rights  of  an  accused,  and  without  advice  of  counsel.'^ 

If  one  receives  a  confession  while  pretending  to  be  an 
ofhcer,  but  in  fact  is  not  in  authority,  the  better  view  would 
seem  to  be  that  the  confession  is  admissible.  So  if  a  man's 
confession  is  overheard,  or  is  obtained  by  a  private  person  by 
cheat  or  drunkenness,  it  may  be  used."  And  if  in  conse- 
quence of  an  inadmissible  confession  other  evidence  is  dis- 
covered, as,  for  instance,  if  the  weapon  with  which  a  murder 
was  committed  is  found,  such  evidence  may  be  introduced.^ 

The  rule  as  to  confessions  does  not  apply  to  admissions 
from  conduct.  Evidence  of  the  conduct  of  the  accused  is 
always  receivable ;  such,  for  instance,  as  the  flight  of  the  de- 
fendant,^ or  silence  of  the  accused  when  damaging  statements 
are  made  under  such  circumstances  as  call  for  denial. i'' 

An  uncorroborated  confession  is  not  enough,  to  justify  a 
conviction.  The  corpus  delicti  or  fact  that  a  crime  has  been 
committed,  must  be  at  least  plausibly  shown  by  other  evidence.^^ 

1  Biscoe  V.  S..  67  Md.  6,  8  Atl.  571 ;  Ellis  v.  S.,  65  Miss.  44,  3  So.  188. 

2  C.  V.  Piper,  120  Mass.  185. 

3  C.  V.  Bradford,  126  Mass.  42. 

*  C.  ('.  Reynolds,  122  INIass.  454. 

6  r.albo  V.  P.,  80  N.  Y.  484. 
e  S.  V.  Garrett,  71  N.  C.  b5. 

7  C.  V.  Howe,  0  Gray  (Mass.)  110, 

8  C.  r.  James,  00  Mass.  4:58 ;  8.  v.  Garrett,  71  N.  C.  85. 
0  P.  r.  Stanley,  47  Cal.  113  (scmble). 

10  Kelley  v.  P.,  55  N.  Y.  565. 

"  Matthews  f.  S.,  55  Ala.  187;    S.  v.  German,  54  Mo.  526,  14  Amer. 


Sects.  129,  130.]  OF  CRIMINAL  PROCEDURE.  117 

§  129.  Evidence  of  Character. —  The  character  of  tlic  ac- 
cused cannot  be  shown  in  evidence  by  the  prosecution  ;  ^  but 
the  defendant  may  introduce  evidence  of  his  own  good  char- 
acter, which  then  may  be  controverted  by  the  prosecution.^ 
It  has  been  sometimes  said  that  proof  of  the  good  character  of 
the  defendant  is  available  only  in  doubtful  cases ;  but  the 
better  opinion  is  tliat  it  may  be  shown  in  any  case,  the  weight 
of  it  being  for  the  jury.^  Character  is  to  be  proved  by  general 
reputation,  not  by  special  instances  of  good  or  bad  conduct.^ 

In  certain  cases  of  offences  against  women,  the  woman's 
character  for  chastity  may  be  shown,  as  bearing  on  the  ques- 
tion of  consent.^ 

§  130.  Testimony  of  Accomplice. — It  is  sometimes  urged 
that  a  defendant  should  not  be  convicted  upon  the  testimony 
of  an  accomplice  without  corroboration.^  This,  however,  is 
not  a'rule  of  law.  It  is  entirely  within  the  discretion  of  the 
court  whether  it  will  caution  the  jury  in  this  way  ;  and  a  re- 
fusal so  to  do  is  no  matter  of  exception.^  The  practice  in  Eng- 
land is  more  uniform  in  felonies  than  in  misdemeanors,  in 
which  latter  case  it  is  sometimes  refused.^  In  Georgia  the 
rule  is  made  applicable  only  in  felonies.^  But  a  conviction  on 
tlie  uncorroborated  evidence  of  an  accomplice  is  good  at  com- 
mon law.  The  principle  which  allows  the  evidence  to  go  to 
the  jury  at  all  necessarily  involves  the  right  to  believe  and  act 

Rep.  483,  486,  n. ;  Ruloff  v.    P.,   18   N.    Y.   179 ;  Gray  v.   C,  101  Pa. 
380. 

1  P.  V.  Greenwall,  108  N.  Y.  296,  15  X.  E.  404. 

2  C.  V.  Webster,  5  Cush.  (Mass.)  29.5,  324. 

'^  S.  V.  Northrup,  48  la.  583,  and  cases  cited;  C.  v.  Leonard,  140 
Mass.  473,  4  X.  E.  96 ;  S.  v.  Daley,  53  Vt.  442. 

4  S.  V.  Bloom,  68  Ind.  54;  C  v.  O'Brien,  119  Mass.  342;  P.  c.  Green- 
wall,  aiite. 

5  C.  V.  Kendall,  113  ^lass.  210;  Woods  v.  P.,  55  N.  Y.  515;  S.  v.  Reed, 
39  Vt.  417. 

6  See  ante,  §  76. 

7  Smith  V.  S.,  37  Ala.  472 ;  S.  v.  Litchfield,  58  Me.  267. 

-  ^  IMcClory  i'.  Wright,  10  Jr.  Com.  Law,  514 ;  1  Greenleaf,  Evidence, 
§  382,  n. 

-  9  Parsons  v.  S.,  43  Ga.  197. 


118  CRIMINAL   LAW  [Sects.  131,  132. 

upon  it.^  But  by  statute  in  Iowa  and  Texas,  and  perhaps 
otlier  States,  there  must  be  corroboration.^ 

§  131.  Fresh  Complaint.  —  In  rape  cases,  evidence  is  admis- 
sible that  the  woman  made  comphiint  of  the  ill  usaj^e  as  soon 
as  she  was  able  to  do  so  ;  but  not,  in  most  jurisdictions,  the 
particulars  of  the  complaint.^  In  some  States,  however,  all 
the  particulars  of  the  complaint  are  allowed  to  be  given  in 
corroboration.^ 

§  132.  Dying  Declarations.  —  In  trials  for  homicide,  declar- 
ations of  the  deceased  made  in  contemplation  of  death  are  ad- 
missible to  prove  the  circumstances  of  the  killing,  in  favor  of 
the  prisoner,  as  well  as  agaii\st  him.-^  The  declaration  must 
be  a  statement  of  fact,"  and  it  must  appear  that  the  deceased 
was  conscious  that  he  was  at  the  point  of  death.''  If  he  was  so 
conscious,  the  declaration  is  admissil)le,  though  in  fact  lie  lived 
several  days;^  and  if  not  so  conscious  it  is  inadmissible, 
though  he  died  at  once.^ 

1  S.  V.  Wolcott,  21  Conn.  272;  Collins  v.  V.,  98  Til.  581;  Dawley  v.  S., 
4  Ind.  128;  S.  v.  Prudlioniine,  2o  La.  Ann.  .522;  C  v.  Bosworth,  22  Pick. 
(Mass.)  397;  C.  v.  Holmes,  127  Mass.  424,  34  Amer.  Kep.  391,  408,  n.; 
Hamilton  v.  P.,  29  Mich.  173;  S.  v.  Hyer,  39  N.J.  L.  598;  P.  r.  Costello, 
1  Denio  (N.  Y.)  83  ;  Linsday  v.  P.,  G3  X.  Y.  143;  S.  v.  Holland,  83  N.  C. 
621;  Kilrow  v.  C,  89  Pa.  480;  U.  S.  v.  Kessler,  1  Bald.  C.  Ct.  15,  Fed. 
Cas.  No.  15,.528;   contra,  P.  v.  Ame.s,  39  Cal.  405. 

2  Smith  V.  S.,  37  Ala.  472;  S.  v.  Moran,  34  la.  453;  Lopez  v.  S.,  34 
Tex.  133. 

8  Reg.  V.  Walker,  2  M.  &  R.  212. 
*  S.  V.  Kinney,  44  Conn.  153. 
6  Reg.  V.  Scaife,  1  I\Ioo.  &  R.  551. 

6  Collins  V.  C,  12  Bush  (Ky.)  271;  P.  v.  Shaw,  G3  N.  Y.  30;  Whart. 
Crim.  Kv.,  §  294. 

7  S.  V.  Wagner,  Gl  Me.  178;  C.  v.  Casey,  11  Cash.  (Mass.)  417;  Sulli- 
van V.  C,  93  Pa.  284. 

8  C.  r.  Cooper,  5  All.  (l\Iass.)  495. 

9  Reg.  r.  Jenkins,  L.  K.  1  C.  C  187. 


Sects.  13:},  134.]     OFFENCES   AGAINST  THE   GOVERNMENT.         119 


CHAPTER   III. 


OFFENCES    AGAINST    THE    GOVERNMENT. 


§  134.   Treason. 

140.  Bril)ery. 

141.  I'iXtortioii  and  Oppression. 

143.    Barratry. —  Cliamperty. —  Main- 
tenance. 


§  146.    Enihracery. 
147.    Perjury. 
1.54.    Contempt. 

1,59.   Kescue.   —   Escape.   —   Pri.son 
Breach. 


§  133.  Introductory,  —  Tu  the  followinj^  chapters,  the  more 
im|)ortant  offences  will  be  considered  more  at  large.  It  is  to 
be  borne  in  mind  that  there  is  no  sharply  defined  line  between 
criminal  and  merely  civil  offences ;  the  difference  is  only  one 
of  degree.  There  is  no  limit  to  the  number  of  crimes.  Those 
that  will  be  described  are  only  a  few,  which  from  their  more 
frequent  occurrence  or  their  greater  importance  it  has  become 
possible  to  define  with  exactness. 

The  first  class  of  crimes  consists  of  offences  against  the 
public  in  its  corporate  capacity  ;  against  the  government  itself, 
or  some  department  of  it.  The  most  heinous  crime  of  this 
sort  is  treason.  Other  important  crimes  are  bribery,  extor- 
tion, and  oppression  ;  offences  against  justice,  such  as  barra- 
try, champerty  and  maintenance,  embracery,  perjury,  and 
contempt ;  and  prison  breach  and  kindred  crimes. 


TREASON. 


§  134. 


At  common  law  there  are  two  kinds  of  treason  : 
first,  disloyalty  to  the  King,  or  a  violation  of  the  allegiance 
due  him,  which  was  of  the  highest  obligation,  and  hence  called 
li'ljh  treason  ;  and,  secondly,  a  violation  of  the  allegiance  or 
duty  owed  by  an  inferior  to  a  superior,  as  of  a  wife  to  the 
husband,  a  servant  to  his  master,  or  an  ecclesiastic  to  his  lord 
or  ordinary,  —  cither  of  which  inferiors,  if  they  should  kill 


120  CRIMINAL  LAW.  [Sects.  1£.=),  136. 

their  superior,  were  held  guilty  of  petit  treason.^  There  is 
now,  however,  neither  in  England  nor  in  this  country  any  such 
classification  of  treasons, — petit  treasons  being  everywhere 
punished  as  homicides. 

§  135.  Definition.  — By  the  ancient  common  law,  the  crime 
of  treason  was  not  clearly  defined,  whence  arose,  according  to 
the  arbitrary  discretion  of  the  judges  and  the  temper  of  the 
times,  a  great  number  of  modes  by  which  it  was  held 
treason  might  be  committed,  not  important  to  be  here  detailed. 
The  inconvenience  of  such  uncertainty  as  to  the  law  led  to  the 
enactment  of  the  Stat.  25  Edw.  III.  c.  2,  which,  confirmed 
and  made  perpetual  by  57  Geo.  III.  c.  G,  defines  the  law  of 
England  upon  the  subject,  enumerating  a  large  number  of 
specific  acts  which  may  constitute  the  offence.  Only  two 
of  these,  however,  are  treasonable  in  this  country .^ 

By  the  Constitution  of  the  United  States,^  treason  is  de- 
clared to  consist  only  "  in  levying  war  against  them,  or  in  ad- 
hering to  their  enemies,  giving  them  aid  and  comfort  "  ;  and 
this  must  be  by  a  person  owing  allegiance  to  the  United  States.^ 
Substantially  the  same  definition  is  adopted  by  the  several 
States,  some  of  them,  however,  setting  out,  either  in  their 
constitutions  or  the  statutes,  at  some  length,  the  particular 
metiiods  of  adhesion  and  of  giving  aid  and  comfort  which 
shall  constitute  treason. 

§  136.  War  May  Be  Levied,  not  only  by  taking  arms  against 
the  government,  but  under  pretence  of  reforming  religion  or 
the  laws,  or  of  removing  evil  counsellors,  or  other  grievances, 
•whether  real  or  pretended.  To  resist  the  government  forces 
by  defending  a  fort  against  them  is  levying  war,  and  so  is 
an  insurrection  with  an  avowed  design  to  put  down  all  en- 
closures, all  brothels,  or  the  like  ;  the  -universality  of  the 
design  making  it  a  rebellion  against  the  State  and  a  usurpa- 
tion of  the  power  of  government.     But  a  tumult,  with  a  view 

1  4  Bl.  Com.  75;  Resp.  v.  Chapman,  1  Dall.  (Pa.)  53. 

2  .steplien'.s  Dig.  Cr.  Law,  art.  51  et  seq. 
8  Art.  3,  §  3. 

*  As  to  what  constitutes  allegiance,  see  Kent  Com.  (12th  ed.),  pp.  39 
et  seq. 


Sect.  136.]  TREASON.  121 

to  \m\\    down  a  particular   house  or    lay  open    a   particular 
enclosure,  amounts  at  best  to  riot,  there  being  no  defiance 
of  public  government.^     An  insurrection  to  prevent  the  execu- 
tion of  an  act  of  Congress  altogether,  by  force  and  intimida- 
tion, is  levying  war;^  but  forcible  resistance  to  the  execution 
of  such  an  act  for  a  present  purpose,  nnd  not  for  a  purpose  of 
a  public  and  general  cliaracter,  does  not  amount  to  treason  ;^ 
nor  does  the  mere  enlistment  of  men  into  service.^     There 
must  be,  to  constitute  an  actual  levy  of  war,  an  assemblage 
of  persons  met  for  a  treasonable  purpose,  and  some  overt  act 
done,  or  some  attempt  made  by  them,  with  force,  to  execute, 
or  toward  executing,  that  purpose.     There  must  be  a  present 
intention    to    proceed    to   the    execution    of    the    treasonable 
purpose  by  force.     The  assembly  must  be  in  a  condition  to 
use  force,  if  necessary,  to  further,  or  to  aid,  or  to  accomplish 
their  treasonable    design.     If   the  assembly  is   arrayed  in  a 
military  manner  for  the  express  purpose   of   overawing   or 
intimidating  the  public,  and  to  attempt  to  carry  into  effect 
their   treasonable  designs,  that  Avill,  of    itself,  amount   to  a 
levy  of  war,  although  no  actual  blow  has  been  struck  or  en- 
gagement has  taken  place.-^     So,  aiding  a  rebellion  by  fitting 
out  a  vessel  to  cruise  against  the  goverinnent  rebelled  against 
in  behalf  of  the  insurgents,  is  levying  war,  whether  the  vessel 
sails  or  not.*^     So  is  a  desertion  to,  or  voluntary  enlistment 
in.  the  service  of  the  enemy.' 

In  England,  "levying  war"  is  held  to  mean:  1st.  At- 
tacking, in  the  manner  usual  in  war,  the  Sovereign  himself,  or 
his  military  forces,  acting  as  such  by  his  orders  in  the  execu- 
tion of  their  duty  ;  2d.  Attempting  by  an  insurrection,  of  what- 
ever nature,  by  force  or  constraint,  to  compel  the  Sovereign  to 

1  4  Bl.  Com.  81,  82;  poxt,  §§  165,  166. 

2  U.  S.  V.  Mitchell,  2  Dall.  (Pa.)  348. 

8  U.  S.  V.  Hosie,  1  Paine  C.  Ct.  265,  Fed.  Cas.  No.  15,407;  U.  S.  v. 
Haiiway,  2  Wall.  Jr.  C.  Ct.  139,  Fed.  Cas.  No.  15,299. 
*  Ex  parte  Bollman,  4  Cranch  (U.  S.)  75. 

5  Burr's  Trial,  401.     See  also  14  Law  Reporter,  p.  418 

6  U.  S.  V.  Greathouse,  2  Abb.  C.  Ct.  364,  Fed.  Cas.  No.  15,251. 

T  Roberts's  Case,  1   Dall.  (Pa.)  39:  McCarty's  Ca.se,  2  Dall.  (Pa.)  86; 
U.  S.  V.  Hodges,  2  Wheeler's  Cr.  Cas.  477,  Fedl  Cas.  No.  15,374. 


122  CRIMINAL  LAW.  [Sects.  137-139. 

change  his  measures  or  counsels,  or  to  intimidate  or  overawe 
both  Houses  or  either  House  of  Parliament ;  and,  3d.  Attempt- 
ing, by  an  insurrection  of  whatever  kind,  to  effect  any  general 
public  object.  But  an  insurrection,  even  conducted  in  a 
warlike  manner,  against  a  private  person,  for  the  purpose 
of  inflicting  upon  him  a  private  wrong,  is  not  levying  war,  in 
a  treasonable  sense. 

Adhering  to  the  Sovereign's  enemies  is  held  to  be  active 
assistance  within  or  without  the  realm  to  a  public  enemy  at 
war  with  the  Sovereign.  Rclicls  may  be  public  enemies, 
within  the  meaning  of  the  rule.^ 

§  137.  Who  May  Commit. — Treason  involves  a  breach  of 
allegiance ;  a  foreigner  not  in  the  country  cannot  therefore 
be  guilty  of  the  crime.  But  even  an  alien  owes  allegiance 
to  the  laws  of  the  country  in  which  he  is,  and  is  bound  to 
abide  by  them.'  He  may  therefore  be  guilty  of  treason  by 
giving  aid  and  comfort  to  an  enemy  of  that  country.^ 

§  138.  Misprision  of  Treason  is  the  concealment,  by  one 
having  knowledge,  of  any  treason  committed  or  (in  some  of 
the  States)  contemplated,  or  the  failure  to  make  it  known  to 
the  government.^ 

§  139.  Evidence.  —  The  rule  is  incorporated  into  the  Con- 
stitution of  the  United  States,  and  into  those  of  most  of  the 
States,  that  treason  can  only  be  proved  by  the  evidence  of 
two  witnesses  to  the  same  overt  act,  or  by  confession  in  open 
court.  Unless  the  overt  act  is  so  proved,  all  other  evidence 
is  irrelevant.'*  But  an  overt  act  being  proved  by  two  wit- 
nesses, all  other  requisite  facts  may  be  proved  by  the  testi-, 
mony  of  a  single  witness.^ 

The  common  law  rule  was  that  there  must  be  two  wit- 
nesses ;  but  it  was  held  sufficient  if  one  testified  to  one  overt 
act,  and  another  to  another.  And  this  may  be  the  rule  now 
in  those  States  whose  constitutions  or  statutes  do  not  contain 

^  Stephen's  Dig.  Cr.  Law,  arts.  53  and  54. 

2  Carlisle  v.  U.  S.,  IG  Wall.  147. 

*  See  the  Constitutions  and  statutes  of  the  several  States. 

<  U.  S.  V.  Burr,  4  Cranch,  493. 

6  U.  S.  V.  Mitchell,  2  Dall.  (Pa.)  348. 


Sect.  140.]  BRIBERY.  123 

the  explicit  language  of  the  Constitution  of  the  United  States.^ 
The  ordinary  rules  of  evidence  generally  prevail  in  the  proof 
of  misprisions.^ 

A  confession  not  in  court  may  be  proved  by  the  testimony 
of  one  witness,  as  corroborating  other  testimony  in  the  case; 
but  in  those  States  prohibiting  conviction  unless  upon  con- 
fession in  open  court,  it  cannot  be  made  the  substantive 
ground  of  conviction.^ 

BRIBSRY. 

§  140.  Bribery  is  a  misdemeanor  at  common  law,*  and  has 
generally  been  dclined  as  the  offering  or  receiving  of  any  undue 
reward  to  or  by  any  person  whose  ordinary  profession  or 
business  relates  to  the  administration  of  public  justice,  in 
order  to  influence  his  behavior  in  office,  and  induce  him  to  act 
contrary  to  the  known  rules  of  honesty  and  integrity.^  But 
in  more  modern  times  the  word  has  received  a  much  broader 
interpretation,  and  is  now  held  to  mean  the  corruptly  offer- 
ing, soliciting,  or  receiving  of  any  undue  reward  as  a  con- 
sideration for  the  discharge  of  any  public  duty.  Strictly 
speaking,  an  offer  to  give  or  receive  a  bribe  is  only  an  at- 
tempt,^ and  the  receipt  of  a  bribe  is  the  consummated  offence. 
But  as  long  ago  as  1678  a  standing  order  of  the  House  of 
Commons  made  it  bribery  as  well  to  offer  as  to  receive,  and 
so  at  the  present  day  either  the  offering  or  receiving  is  held 
to  constitute  the  offence,  and  an  actual  tender  of  the  bribe  is 
not  necessary.'^ 

By  undue  reward  is  meant  any  pecuniary  advantage,  direct 
or  indirect,  beyond  that  naturally  attaclied  to  or  growing  out 
of  the  discharge  of  the  duty.     Thus,  voting  is  a  public  duty, 

1  Stat.  7  Will.  Ill,  c.  3,  §  2 ;  R.  S.  Xew  York,  vol.  ii,  p.  890,  §  15;  3 
Greenl.  Ev.,  §  246,  and  notes. 

2  3  Greenl.  Ev.,  §  247. 

3  Roberts's  Case,  1  Dall.  (Pa.)  39;  McCarty's  Case,  2  Dall.  (Pa.)  86. 

4  1  Hawk.  P.  C,  bk.  1,  c.  67,  §  6. 

6  Coke,  3d  Inst.  14.3;  3  Greenl.  Ev.,  §  71. 

«  Walsh  r.  P.,  65  111.  58. 

'  S.  V.  Woodward,  182  Mo.  391,  81  S.  W.  857. 


124  CRIMINAL  LAW,  [Sect.  140. 

and  though  no  compensation  is  allowed,  yet  by  the  exercise  of 
the  right  one  may  promote  the  public  welfare,  and  thus  indi- 
rectly his  own.  But  if  he  sells  or  promises  to  sell  his  vote  in 
consideration  of  any  other  private  reward,  it  is  an  abuse  of  the 
trust,  and  an  indictable  offence  ;i  as  where  A  votes  for  B 
for  one  office,  in  consideration  of  B's  vote  for  A  for  another.^ 
And  bribery  even  of  a  member  of  the  nominating  convention 
of  a  political  party  seems  criminal  at  common  law.^  And 
buying  or  promising  to  buy  the  vote  is  equally  an  offence, 
though  the  person  selling  refuses  to  perform  the  contract,^  or, 
if  a  legislator,  has  no  jurisdiction  in  the  premises,^  or  in  point 
of  fact  has  no  right  to  vote.*'  So  where  a  candidate  for  public 
oflfice  offered,  in  case  of  his  election,  to  serve  for  less  than  the 
salary  provided  by  law  for  the  office,  whereby  the  taxes  would 
be  diminished,  this  was  held  to  be  within  the  spirit  of  the  law 
against  bribery.'^  So  conduct  inducing  or  tending  to  induce 
corrupt  official  action,  as  the  offer  of  money  to  one  having 
the  power  of  appointment  to  office,  to  influence  his  action 
thereon  ;^  or  to  a  sheriff  or  his  subordinate  having  the  custody 
of  prisoners,  to  induce  him  to  connive  at  their  escape  ;^  or  to 
a  customs  officer,  to  induce  him  to  forbear  making  a  seizure 
of  goods  forfeited  by  violation  of  the  revenue  laws.^'^  The 
theory  of  our  government  is  that  all  public  stations  are  trusts, 
and  that  those  clothed  with  them  are  to  be  actuated  in  the 
discharge  of  their  duties  solely  by  considerations  of   right, 

1  Reg.  V.  Lancaster,  16  Cox  C.  C.  737 ;  S.  v.  Jackson,  73  Me.  91. 

2  C.  V.  Callaghan,  2  Va.  Cas,  460,  C.  6. 

3  C.  V.  Bell,  145  Pa.  374,  22  Atl.  641. 

4  Sulston  V.  Norton,  3  Burr.  1235 ;  Henslow  v.  Fawcett,  3  Ad.  & 
El.  51. 

5  P.  V.  McGarry  (Mich.),  99  N.  W.  147 ;  S.  v.  Ellis,  4  Vroom  (N.  J.), 
102,  M.  23;  contra,  S.  v.  Butler,  178  Mo.  272,  77  S.  W.  560. 

6  Combe  v.  Pitt,  3  Burr.  1586. 

•  S.  V.  Purdy,  36  Wis.  213.  But  see  Dishon  v.  Smith,  10  la  212, 
where  giving  a  note  to  the  county  as  an  inducement  to  the  people  to  vote 
for  the  removal  of  the  county  seat  was  held  not  to  be  bribery. 

8  Rex  V.  Vaughan,  4  Burr.  2494  ;  Ilex  v.  Pollman,  2  Camp.  229. 

9  Rex  V.  Beale,  1  East,  183. 

10  Rex  V.  Everett,  3  B.  &  C.  114.  See  also  Caton  v.  Stewart,  76  N.  C. 
357. 


Sect.  Ul.]  EXTORTION  AND  OPPRESSION.  125 

justice,  and  the  public  good  ;  and  any  departure  from  the  line 
of  rectitude  in  this  behalf,  and  any  conduct  tending  to  induce 
sucli  departure,  is  a  public  wrong. ^  Tlic  otter  of  money  to 
induce  a  public  officer  to  resign  office,  the  intent  being  that 
the  defendant  might  be  appointed  in  his  place,  is  criminal 
bribei-y.2  Under  the  statute  ^  which  prohibits  the  payment  of 
money  to  a  voter  to  induce  him  to  vote,  it  has  been  held  to  be 
an  offence  to  pay  the  travelling  expenses  of  the  voter  to  and 
from  the  polling  places.* 

EXTORTIOX    AXD    0PPRESSI0:N". 

§  141.  Extortion  is  the  demanding  and  taking  of  an  illegal 
fee,  under  color  of  office,  by  a  person  clothed  by  the  law  with 
official  duties  and  privileges.^  The  fee  is  illegal,  if  demanded 
and  taken  before  it  is  due,  or  if  it  be  a  greater  amount  than 
tlie  law  allows,  and,  of  course,  if  not  allowed  at  all  by  law. 
Thus,  it  is  extortion  for  a  justice  of  the  peace  to  exact  costs 
where  they  are  not  properly  taxable,  or  from  the  party  to 
whom  they  are  not  taxable  ;^  or  for  a  jailer  to  obtain  money 
of  his  prisoner  by  color  of  his  office  ; '  or  for  a  ferryman  ^  or 
miller^  to  collect  tolls  not  warranted  by  custom;  or  for  a 
county  treasurer  to  exact  fees  for  acts  required  in  the  collec- 
tion of  taxes,  but  which  had  not  been  done  ;  ^^  or  for  a  coroner  ii 
or  sheriif  to  refuse  to  do  their  official  duty  unless  their  fees  are 

1  Trist  V.  Child,  21  Wall.  (U.  S.)  441. 

2  Reg.  V.  Mercer,  17  Up.  Cau.  Q.  B.  602  (semble). 

3  17  &  18  Vict.  c.  102. 

*  Cooper  V.  Slade,  C  H.  L.  C.  746. 

5  Rex  c.  Baiues,  6  :\lod.  192 ;  INling  v.  Truett,  1  IMont.  322.  For  dis- 
tinction between  bribery  and  corruption  see  Levar  v.  S.,  103  Ga.  42.  29 
S.  E.  467. 

6  P.  V.  Whaley,6  Cow.  (N.  Y.)  661 ;  Resp.  v.  Hannum,  1  Yeates  (Pa.), 
71.     So  with  a  constable  :  Levar  v.  S.,  ante. 

T  Rex  V.  Broughton,  Trem.  P.  C.  111. 

8  Rex  V.  Roberts,  4  Mod.  101. 

9  Rex  V.  Burdett,  1  Ld.  Rayiu.  148. 
10  S.  V.  Burton,  3  Tud.  03. 

"  Rex  V.  Harrison,  1  East  P.  C.  382. 


126  CRIMINAL  LAW.  [Sect.  142. 

prepaid  ;  ^  or  to  demand  and  receive  fees  where  none  are  by  law 
deinandablc.2  So  it  is  extortion  for  an  officer  to  avail  him- 
self of  his  official  position  to  force  others,  by  indirect  means, 
to  contribute  to  his  pecuniary  advantage  to  an  amount  and 
in  a  manner  not  authorized  by  law;  as,  for  instance,  for  a 
slieriff  to  receive  a  consideration  from  A  for  accepting  A  as 
bail  for  C,  whom  he  has  arrested.^  That  tlic  illegal  fee  is  in 
the  form  of  a  present,  or  other  valuable  thing  than  money, 
is  immaterial;^  unless  the  gift  be  voluntary,^  in  which  case 
there  is  no  offence  committed.  By  a  very  strict  construction, 
the  taking  a  promissory  note  for  illegal  fees  is  held  not  to 
constitute  the  offence,  as  the  note  is  void,  cannot  be  enforced, 
and  is  therefore  of  no  valuc.^  And  the  taking  must  be  with 
a  wrong  intent,"  and  not  through  mistake  of  fact^  or  of  law.^ 

§  142.  Oppression  is  such  an  abuse  of  discretionary  author- 
ity by  a  public  officer,  from  an  improper  motive,  as  consists 
in  inflicting  any  other  injury  than  extortion.  Thus,  where  a 
judge  inflicts  an  excessive  sentence  from  unworthy  motives, 
he  is  guilty  of  oppression.^*^  So  where  a  public  officer  refuses 
to  issue  a  license  to  an  inn-keeper  because  he  does  not  vote  as 
the  officer  wishes,  the  officer  is  guilty  of  oppression. ^^  And  so 
where  a  magistrate  punishes  a  defendant  without  pursuing 
the  forms  of  law,  he  is  guilty  of  oppression.  ^^ 

1  Hescott's  Case,  1  Salk.  330;  C.  v.  Bagley,  7  Pick.  (Mass.)  279;  S.v. 
Yasel,  47  Mo.  416,  444  ;  S.  ?^  Maires,  4  Vroom  (N.  J.),  142. 

2  C.  V.  ]\Iitcliell,  3  Bush  (Ky.),  25;  Simmons  v.  Kelley,  33  Pa.  190. 

3  StotesLury  v.  Smith,  2  Burr.  924;  Rex  v.  Higgius,  4  C.  &  P.  247; 
Rex  V.  Burdett,  1  Ld.  Rayni.  148;  Rex  v.  Loggen,  1  Stra.  73  ;  P.  v.  Cal- 
houn, 3  Wend.  (N.  Y.)  420. 

*  Rex  V.  Eyres,  1  Sid.  307. 

5  C.  I'.  Dennie,  Th.  Cr.  Cas.  (Mass.)  165. 

6  C.  V.  Cony,  2  Mass.  523  ;  U.  S.  v.  Driggs,  125  Fed.  520.  But  see 
Empson  v.  Bathurst,  Hut.  52  ;  C.  v.  Pease,  16  Mass.  91. 

7  Cleaveland  v.  S.,  34  Ala.  254  ;  S.  v.  Stotts,  5  Blackf.  (Ind.)  460 ; 
Resp.  ('.  Hannum,  1  Yeates  (Pa),  71. 

8  Bowman  v.  Blythe,  7  E.  &  B.  26. 

9  S.  V.  Cutter,  36  N.  J.  L.  125,  M.  241 ;  P.  v.  Whaley,  6  Cow.  (N.  Y.) 
061. 

10  Steph.  Dig.  Cr.  Law,  §  119  (1). 

11  Rex  V.  AVilliams,  2  Burr.  1317. 

12  Rex  V.  Okey,  8  Mod.  46. 


Sects.  U2a,  143.]     BARRATRY,  CHAMPERTY,  MAINTENANCE.     127 

§  142(/.  Other  OflBleial  Misconduct.  —  E.^tortion  and  oppression 
are  but  two  illustrations  of  the  g'eneral  principle  that  the  pub- 
lic has  a  right  to  be  honestly  served  by  its  officers,  and  that 
any  dereliction  of  duty  by  them  is  punishable ;  it  is  immater- 
ial whether  it  consists  in  a  wrongful  doing,  or  in  a  v/rongful 
failure  to  do.  Thus  a  license  commissioner  is  indictable 
for  corruptly  giving  a  license  to  an  unfit  person  ;i  a  justice  for 
discharging  a  prisoner  without  proper  bail,^  a  constable  for 
unnecessarily  and  maliciously  binding  a  prisoner,^  a  city  coun- 
cil for  corruptly,  though  not  extortiously,  awarding  a  contract 
to  other  than  the  lowest  responsible  bidder.*  So  also,  the 
mayor  of  a  city  is  indictable  for  failing  to  take  proper  steps  to 
suppress  a  riot;  ^  a  town  clerk  for  not  properly  keeping  the  town 
records.^ 

BAKRATRY,    CHAMPERTY,  MAINTENANCE. 

§  143.  Barratry,  Champerty,  and  Maintenance  are  kindred 
offences.  The  encouragement  of  strife  was  regarded  by  the 
common  law  as  a  matter  of  public  concern,  and  it  interposed 
to  punish  and  prevent  it.  There  were  two  special  forms  which 
this  encouragement  assumed  :  one,  where  a  stranger  in  interest 
takes  part  in  the  promotion  of  a  controversy  under  an  agree- 
ment that  he  shall  have  part  of  the  proceeds,  is  called  champerty, 
because  it  is  an  agreement  campum  partire, — to  divide  the 
spoils ;  the  other,  where  one  officiously  and  without  just  cause 
intermeddles  with  and  promotes  the  prosecution  or  defence  of 
a  suit  in  which  he  has  no  interest,  is  called  maintenance. 

Barratry  is  habitual  champerty  or  maintenance,  and  is  com- 
mitted where  one  has  become  so  accustomed  to  intermeddle 
in  strifes  and  controversies  in  and  out  of  court  that  he  may  be 
said  to  be  a  common  mover,  exciter,  or  maintainer  of  suits  and 

1  Rex  v.  Holland,  1  T.  R.  692;  P.  v.  Norton,  7  Barb.  (N.  Y.)  477. 

2  V.v.  Coon,  1.3  Wend.  (X.  Y.)  277. 

3  S.  V.  Stalcup,  2  Ired.  (X.  C.)  50. 

*  S.  V.  Kern,  51  N.  J.  L.  259,  17  Atl.  114. 
6  Reg.  V.  Xeale,  9  C.  &  P.  431. 

*  S.  V.  Buxton,  2  Swan  (Teun.),  57.  On  the  question  of  intent  in  these 
cases  see  ante,  §§  52-58. 


128  CRIMINAL  LAW.  [Sect.  144. 

quarrels  ;  as  one  becomes  a  common  scold  by  the  too  frequent 
and  habitually  abusive  use  of  the  tongue,  or  a  common  seller  of 
liquor,  by  habitually  selling  it  in  violation  of  law.  A  single 
act  is  sufficient  upon  which  to  maintain  an  indictment  either 
for  cbamperty  or  maintenance;  but  a  series  of  acts,  not  less 
than  three,  are  necessary  to  constitute  the  habit,  which  is  the 
gist  of  the  crime  of  barratry. ^ 

The  offence  of  barratry  may  be  committed  by  a  justice  of  the 
peace  who  stirs  up  prosecutions  to  be  had  before  himself  for 
the  sake  of  fees  ;  ^  and,  it  seems,  by  one  who  unnecessarily, 
and  for  the  purpose  of  opposing  his  adversary,  brings  numerous 
ungrounded  suits  in  his  own  right.^ 

§  144.  Interest.  —  The  intervention,  in  order  to  constitute 
the  crime  of  maintenance,  must  be  without  interest.  If  one 
may  be  prejudiced  by  the  result  of  the  suit,  or  has  a  contin- 
gent interest  therein,  as  if  a  vendee  has  warranted  title  to  the 
vendor,  he  has  an  interest  which  justifies  the  intervention.* 
So  if  the  party  intermeddling  has  a  special  interest  in  the 
general  question  to  be  decided,  though  not  otherwise  in  the 
result  of  the  particular  suit,  his  intervention  is  not  unlawful.^ 
In  short,  if  the  party  have  any  interest,  legal  or  equitable, 
though  it  be  but  a  contingent  interest,  he  may  assist  another 
in  a  lawsuit.  Any  substantial  privity  or  concern  in  the  suit 
will  justify  him.*5  So  where  a  creditor  of  a  bankrupt  took  an 
assignment  of  a  right  of  action  from  the  trustee  in  bank- 
ruptcy, agreeing  to  sue  at  his  own  expense  and  pay  one-fourth 
of  what  was  realized  to  the  trustee,  the  transaction  was  not 
champertous,  since  the  creditor  had  an  interest.' 

1  4  Bl.  Com.  134,  135;  C.  v.  Davis,  11  Pick.  (Mass.)  432;  C.  v. 
McCuUoch,  15  Mass.  227;  C  v.  Tubbs,  1  Cush.  (Mass.)  2;  Case  of  Bar- 
retry,  8  Coke,  36,  which  contains  much  of  the  early  learning  on  the 
subject. 

2  S.  V.  Chitty,  1  Bail.  (S.  C.)  370. 

3  C.  V.  McCulloch,  ante;  1  Hawk.  P.  C,  c.  81,  §  3. 

4  Master  v.  Miller,  4  '£■  Ft.  320  ;  Williamson  v.  Sammons,  34  Ala.  G91 ; 
Goodspeed  v.  Fuller,  46  Me.  141. 

5  Gowen  v.  Nowell,  1  Greenl.  (Me.)  292 ;  Davies  v.  Stowell,  78  Wis. 
384,  47  N.  W.  370. 

6  Wickham  v.  Conklin,  8  Johns.  (X.  Y.)  220. 
■!  Guy  V.  Churchill,  40  Ch.  D.  Ibl. 


Sect.  U5.]     BARRATRY.  — CHAMPERTY.  — MAINTENANCE.  129 

§  145.  Officious.  —  The  intervention  must  also  be  officious, 
and  without  just  cause.  If,  therefore,  the  relationship  of  the 
parties  or  their  circumstances  be  such  as  to  warrant  the  belief 
that  the  intervention  is  of  a  friendly  kind,  in  the  interest  of 
justice,  and  to  prevent  oppression,  it  will  not  now,  —  whatever 
may  have  been  the  extravagant  notions  of  the  old  lawyers,^ 
adopted  under  the  pressure  of  the  opinion  that  such  interven- 
tion tended  "to  the  formation  of  combinations  calculated  to 
obstruct  if  not  overawe  the  courts,  —  be  held  to  be  criminal.^ 
The  intervention  is  not  officious  or  unjustifiable,  if  prompted 
by  personal  sympathy  growing  out  of  relationship,  or  long 
association,  as  between  master  and  servant,^  or  by  motives  of 
charity.^  The  common  law  of  champerty  and  maintenance  is 
still  recognized  in  some  of  tlie  States,  though  a  much  less 
degree  of  interest  will  now  justify  the  intervention  than  for- 
merly.^ And  in  these  States  an  agreement  by  an  attorney  to 
carry  on  a  lawsuit,  making  no  disbursements,  and  to  look  to 
a  share  of  tlie  proceeds  for  the  compensation  of  his  services, 
is  held  to  be  clearly  champertous.^  Other  States,  however, 
deuy  that  the  law  of  maintenance  and  champerty  was  ever 
applicable  to  this  country,  and  refuse  to  recognize  it  as  in 
forceJ 

In  point  of  fact,  the  tendency  is  to  disregard  the  common 

1  1  Hawk.  P.  C,  c.  83,  §§  4  et  seq. 

2  Lathrop  v.  Amherst  Bank,  9  :\Iet.  (Mass.)  489. 

3  Campbell  v.  Jones,  i  Wend.  (X.  Y.)  300;  Thallhimer  i\  Brinkerhoff, 
3  Cow.  (N.  Y.)  623. 

*  Ferine  v.  Dunn,  3  Johns.  Ch.  (X.  Y.)  508. 

5  Wood  V.  McGiiire,  21  Ga.  576 ;  Lathrop  v.  Amherst  Bank,  9  Met. 
(Mass.)  489. 

^  Lathrop  v.  Amherst  Bank,  ante.  See  also  Elliott  v.  McClelland,  17 
Ala.  206 ;  Martin  v.  Clarke,  8  R.  I.  389. 

^  Bayard  v.  McLean,  3  Harr.  (Del.)  139;  Newkirk  r.  Cone,  18  111.  449; 
Wright  V.  Meek,  3  Greene  (la.),  472;  Schomp  v.  Schenck,  40  X.  J.  L. 
195;  Stanton  v.  Sedgwick,  14  X.  Y.  289;  Key  v.  Vattier,  1  O.  132; 
Sherley  v.  Riggs,  11  Humph.  (Tenn.)  53;  Bentinck  v.  Franklin,  38  Tex. 
458;  Danforth  v.  Streeter,  28  Vt.  490;  Richardson  v.  Rowland,  40  Conn. 
565.  See  also  note  to  the  l?st  cited  case,  2  Green's  Cr.  Law  Rep.  495, 
for  some  interesting  details  of  the  state  of  society  out  of  which  grew 
the  law  of  maintenance  and  other  analogous  crimes. 

9 


130  CRIMINAL  LAW.  [Sect.  145. 

law,  except  so  far  as  it  may  have  been  adopted  by  statute  ;  ^ 
and  it  may  be  doubted  if  any  indictment  would  now  be  main- 
tained for  champerty  or  maintenance,  not  coming  strictly 
within  the  limits  of  some  precedent.  The  practices  out  of 
which  originated  the  common  and  early  English  statute  laws 
against  the  offences  of  champerty  and  maintenance,  —  among 
which  a  common  one  was  for  a  party  litigant  to  interest  some 
"  great  person  "  to  come  in  and  aid  him  to  overwhelm  his 
antagonist  by  giving  him  a  share  of  the  proceeds,  —  arc  not 
now  so  common  as  to  require  the  interposition  of  the  aid  of 
the  criminal  law.  And  it  is,  to  say  the  least,  very  doubtful 
whether,  at  the  present  day,  an  indictncnt  for  either  offence, 
pure  and  simple,  and  unattended  by  circumstances  of  aggrava- 
tion which  would  amount  to  a  hindrance  or  perversion  of 
justice,  would  be  sustained  in  any  of  our  courts.^ 

Questions  concerning  them  have  usually  arisen  in  civil 
actions,  in  which  a  champertous  contract  has  been  set  up  as 
a  defence.  And  here  the  courts  are  inclined,  without  much 
regard  to  the  old  common  law  precedents,  to  hold  such  con- 
tracts as  are  clearly  against  a  sound  public  policy,  and  only 
such,  as  champertous.^ 

Thus,  where  an  attorney  agrees  to  carry  on  a  suit  at  his 
own  expense  for  a  share  of  the  proceeds,  this  seems  generally 
held  to  be  champertous;*  but  not  where  the  expense  is  to  be 
borne  by  the  party .^  And  even  in  such  case,  if  the  suit  is 
against  the  government,  and  there  is  no  danger  that  a  "  great 
person"  may  bear  down  and  oppress  a  weak  defendant,  the 
reason  of  the  law  failing, the  rule  itself  fails;  and  accordingly 
it  has  been  recently  held  that  an  agreement  by  an  attorney  to 
carry  on   a  suit  against  the  United  States  in  the  Court  of 

1  See  note  to  Richardson  v.  Rowland,  14  Am.  L.  Reg.  n.  s.  78. 

^  Note  to  Richardson  v.  Rowland,  2  Green's  Cr.  Law  Rep.  495;  Maybin 
».  Raymond,  15  Nat.  Bkr.  Reg.  (U.  S  C.  Ct.,  South  Dist.  Miss.)  351,  Fed. 
Cas.  No.  9,338 ;  2  Bish.  Cr.  Law,  7th  ed.,  §§  1-25,  126. 

3  Key  V.  Vattier,  1  O.  132. 

*  Lancy  v.  Havender,  146  Mass.  615,  16  N.  E.  464;  Martin  v.  Clarke, 
8  R.  I.  389  ;  Stearns  v.  Felker,  28  Wis.  594. 

5  Winslow  V.  Ry.  Co.,  71  la.  197,  32  N.  W.  330;  Aultman  v.  Waddle, 
40  Kan.  19.5,  19  P.  730. 


Sects.  14G,  U7.]  EMBRACERY. —  TER JURY.  131 

Claims,  at  his  own  expense,  for  a  portion  of  the  proceeds,  is 
not  champcrtous.i  Nor  is  an  agreement  to  pay  an  attorney  a 
fixed  sum  for  his  services  "  out  of  the  proceeds  of  sales  of  the 
property  [real  estate],  as  such  proceeds  shall  be  realized."  ^ 

EMBRACERY. 

§  146.  Embracery  is  an  attempt,  by  corrupt  means,  to  induce 
a  juror  to  give  a  partial  verdict.  Any  form  of  tampering  with 
a  jury,  whether  successful  or  not  is  immaterial,  constitutes  the 
crinie.^  The  means  most  commonly  resorted  to  are  promises, 
entertainments,  presents,  and  the  like.  But  any  means  cal- 
culated and  intended  to  cause  a  juryman  to  swerve  from  his 
duty,  if  used,  will  make  the  person  using  them  for  that  pur- 
pose indictable  at  common  law.  As  the  crime  is  in  itself  an 
attempt,  it  is  complete  whether  successful  or  not  in  its  pur- 
pose, whether  the  verdict  be  just  or  unjust,  and  even  if  there 
be  no  verdict.*  A  juror  may  be  guilty  of  embracery,  by  the 
use  of  corrupt  and  unlawful  methods  of  influencing  his  fellows, 
or  of  obtaining  a  position  on  the  jury  with  intent  to  aid  either 
party.^ 

PERJURY. 

§  147.  "  Perjury,  by  the  common  law,  seemeth  to  be  a  wil- 
ful false  oath,  by  one  who,  being  lawfully  required  to  depose 
the  truth  in  any  proceeding  in  a  course  of  justice,  swears  ab- 
solutely, in  a  matter  of  some  consequence,  to  the  point  in 
question,  whether  he  be  believed  or  not."  ^  Modern  legislation 
has  allowed  persons  having  conscientious  scruples  against 
taking  an  oath  to  substitute  an  affirmation  for  the  oath. 

1  Majbin  v.  Raymond,  15  Nat.  Bkr.  Reg.  354,  Fed.  Cas.  Xo.  9,338, 
So  of  the  Court  of  Alabama  Claims :  Manning  v.  Sprague,  148  Mass.  18; 
18  N.  E.  673. 

'■^  McPherson  v.  Cox,  96  U.  S.  404. 

3  1  Hawk.  P.  C,  8th  ed.  466:  P.  v.  Myers,  70  Cal.  582,  12  P.  719. 

*  S.  V.  Sales,  2  Nev.  268 ;  Gibbs  v.  Dewey,  5  Cow.  (N.  Y  )  503. 

5  Rex  '.'.  Opie  et  al.,  1  Saund.  301. 

6  1  Hawk.  P.  C,  8th.  ed.  42!) ;  C.  v.  Pollard,  12  Met.  (Mass.)  225;  S. 
V.  Wall,  9  Yerg.  (Tenn.)  347;  S.  v.  Simons,  30  Vt.  620. 


132  CRIMINAL  LAW.  [Sect.  148. 

An  oath  is  a  declaration  of  a  fact  made  under  the  religious 
sanction  of  an  appeal  to  the  Supreme  Being  for  its  truth. 

A)i  affirmation  is  substantially  like  an  oath,  omitting  the 
sanction  of  an  appeal  to  the  Supreme  Being,  and  substituting 
therefor  the."  pains  and  penalties  "  of  perjury. 

The  proper  form  of  administering  either  is  that  which  is 
most  binding  on  the  conscience  of  the  affiant,  and  in  accord- 
ance with  his  religious  belief.  But  the  form  is  not  essential, 
even  though  it  be  prescribed  by  statute,  if  there  be  a  substan- 
tial compliance,  —  the  prescription  being  regarded  as  directory 
merely .1  And  therefore,  if  a  book  other  than  the  Evangelists 
.be  unwittingly  used,  it  does  not  vitiate  the  oath.^  Nor  can  a 
prosecution  for  perjury  be  sustained  upon  testimony  given 
orally  which  the  law  requires  to  be  in  writing,^  nor  upon  an 
affidavit  not  required  by  law.*  But  when  the  witness  is 
sworn  generally  to  tell  the  truth,  instead  of  to  make  true 
answers,  according  to  the  usual  practice,  false  testimony  is  still 
perjury  .5 

§  148.  Lawfully  Required.  —  But,  to  be  valid,  the  oath  must 
be  administered  by  a  court  or  magistrate  duly  authorized.  If 
a  court  having  no  jurisdiction  of  the  person  or  subject  matter, 
or  magistrate  not  duly  authorized  or  qualified,  administer  the 
oath,  it  has  no  binding  force  or  legal  efficacy,  and  no  prosecu- 
tion for  perjury  can  be  predicated  upon  it.  It  is  extra-judicial 
if  the  law  di)es  not  require  the  oath,  or,  the  oath  being  re- 
quired, if  an  unauthorized  person  administers  it.^     Thus,  as 

1  Res  V.  Ilaly,  1  C.  &  D.  (Ire.)  199  ;  C.  v.  Smith,  11  Allen  (Mass.), 
243. 

^  Ashburn  v.  S.,  15  Ga.  246;  P.  v.  Cook,  4  Seld.  (N.  Y.)  07. 

3  S.  V.  Tra&k,  42  Vt.  152 ;  S.  v.  Simons,  30  Vt.  620. 

4  P.  V.  Gaige,  26  Mich.  30;  Ortner  v.  P.,  6  T.  &  C.  (X.  Y.  S.  C.) 
548. 

5  S.  V.  Keene,  26  Me.  33. 

6  Pankey  v.  P.,  1  Scamraon  (111.).  80;  INIuir  v.  S.,  8  Blackf.  (Ind.)  151; 
S.  V.  Plumraer,  50  Me.  217;  P.  v.  Travis,  4  Parker  (N.  Y.),  C.  C.  213; 
Lambert  v.  P.,  76  N.  Y.  220;  S.  v.  Wyatt,  2  Hay.  (N".  C.)  56;  S.  v.  Hay- 
ward,  1  N.  &  McC.  (S.  C.)  546;  C.  u.  Pickering,  8  (irat.  (Va.)  628;  U.  S. 
V.  Babcock,  4  McLean  (C.  Ct.),  113,  Fed.  Cas.  No.  14,488;  U.  S.  v. 
Howard,  37  Fed.  666.     Compare  S.  v.  Kirkpatrick,  32  Ark.  117. 


Sect.  148.]  PERJURY.  133 

illustrations  of  the  first  point,  it  has  been  held  that,  if  a  party  to 
the  record  be  sworn,  the  law  not  admitting  him  as  a  compe- 
tent witness,  false  testimony  by  him  is  no  perjury .^  So  it  has 
been  held  tiiat  it  is  no  perjury  to  swear  falsely  to  a  place  of 
residence  in  obtaining  a  certificate  of  naturalization,  the  oath 
to  that  fact  being  voluntary  and  immaterial  under  the  law.^ 
So  to  take  a  wilfully  false  oath  as  to  the  non-mineral  character 
of  homestead  land  is  not  perjury,  where  the  oath  is  not  called 
for  by  the  statute,  although  required  by  a  departmental  regu- 
lation, the  latter  being  held  forbidden  by  the  language  of  the 
statute.^  So  if  an  immaterial  allegation  of  fact  be  introduced 
and  sworn  to  in  a  petition  to  court.*  So  where  a  bill  in  equity 
is  sworn  to  where  the  oath  is  not  required.'^  Nor  will  a  false 
answer  in  chancery,  the  bill  not  calling  for  a  sworn  answer, 
amount  to  perjury.^ 

Similarly,  as  to  the  other  requirement :  even  though  the  oath 
be  required,  if  the  court  administering  it  has  no  jurisdiction, 
as  where  a  police  court  wrongfully  attempts  to  try  a  larceny  " 
or  burglary  ^  case,  or  for  any  other  reason  has  no  jurisdiction  ;^ 
or  the  official  administering  the  oath  is  incompetent  to  do 
so,i°  the  defendant  cannot  be  held  guilty  of  perjury.  But  if 
jurisdiction   and   authority    exist,   formal  irregularities,  —  as 

1  S.  V.  Hamilton,  7  Mo.  ;100. 

2  S.  V.  Helle,  2  Hill  (S.  C),  290. 
8  U.  S.  V.  Maid,  116  Fed.  650. 

4  Gibson  v.  S.,  41  Ala.  17.  See  also  King  v.  McPhee,  16  Col.  App. 
39,  63  P.  709;  S.  v.    Hamilton,  ante. 

5  P.  V.  Gaige,  26  Mich.  30. 

6  Silvery.  S.,  17  O.  365. 

7  S.  V.  Jenkins,  26  S.  C.  121,  1  S.  E.  437.. 

8  S:  V.  Wymberley,  40  La.  Ann.  460,  4  So.  161. 

9  Collins  V.  S.,  78  Ala.  433;  Renew  i-.  S.,  79  Ga.  162,  4  S.  E.  19;  S. 
V.  Furlong,  26  Me.  69;  S.  v.  McCone,  59  Vt.  117,  7  Atl.  406. 

"  Custodes  r.  Gwinn,  Style  336,  Iv.  416,  M.  959;  S.  v.  Cannon,  79  Mo. 
343 ;  S.  V.  Peters,  57  Vt.  86.  But  mere  irregularities  iu  the  appointment 
are  no  defence;  Markey  v.  S.  (Fla.),  37  So.  53;  S.  v.  Woolridge  (Or."), 
78  P.  333  ;  Manning  v.  S.  (Tex.),  81  S.  W.  957.  It  is  sufficient  that  the 
judge  was  such  de  facto,  so  that  the  judgment  would  have  been  bind- 
ing on  the  parties:  S.  v.  Williams,  61  Kan.  739,  60  P.  1050;  Morford  v. 
Terr.,  10  Okl.  741,  63  P.  958. 


134  CRIMINAL  LAW.  [Sects.  149,  150. 

where  the  witness  is  sworn  to  tell  the  truth  and  the  whole 
truth,  omitting  from  the  oath  the  words  "  and  nothing  but  the 
truth,"  1  or  there  is  error  in  some  of  the  proceedings,  of  which 
the  oath  is  a  part,^  —  are  immaterial. 

§  149.  "  Judicial  Proceeding "  embraces  not  only  the  main 
proceeding,  but  also  subsidiary  proceedings  incidental  thereto  ; 
as  a  motion  for  continuance,^  or  an  attidavit  initiatory  of  a 
proceeding*  or  in  aid  of  one  pending,^  or  a  motion  for  removal*' 
or  for  a  new  trial,*"  or  a  hearing  in  mitigation  of  sentence  ^  or 
for  taking  bail,^  or  on  a  preliminary  inquiry  as  to  the  compe- 
tency of  a  witness  or  juror,!*^  It  also  embraces  any  proceeding 
wherein  an  oath  is  required  by  statute,^^  if  the  oath  is  to  an 
existing  fact,  and  not  merely  promissory .^^  j^  j^r^g  rjig^  [jg(3j^ 
held  to  embrace  a  proceeding  required  or  sanctioned  by  "  the 
common  consent  and  usage  of  mankind."  ^^ 

§  150.  Wilfully  False.  —  The  oath  must  be  wilfully  false  to 
constitute  the  offence.  If  it  be  taken  by  mistake,  or  in  the 
belief  that  it  is  true,  or  upon  advice  of  counsel,  sought  and 
given  in  good  faith,  that  it  may  lawfully  be  taken,  the  offence 
is  not  committed.^"* 

1  P.  V.  Parent,  139  Cal.  600,  73  P.  423 ;  S.  v.  Gates,  17  N.  II.  373. 

2  S.  V.  Lavalley,  9  Mo.  821.  See  also  S.  v.  Hall,  7  Blackf.  (Intl.)  25; 
S.  V.  Dayton,  3  Zabr.  (N.  J.)  49 ;  Van  Steenbergh  v.  Kortz,  10  Johns.  (N". 
Y.)  167;  U.  S.  V.  Babcock,  4  McLean  (C.  Ct.),  113,  Fed.  Cas.  No.  14,488. 

3  Sanders  v.  P.,  124  111.  218,  16  N.  E.  81;  S.  v.  Shupe,  16  la.  36. 

4  Rex  V.  Parnell,  2  Burr.  806;  Carpenter  v.  S.,  4  How.   (Miss.)  163. 

5  Rex  V.  White,  M.  &  M.  271 ;  White  ;;.  S.,  1  S.  &  M.  (Miss.)  149. 

6  Walker  v.  Bryant,  112  Ga.  412,  37  S.  E.  749;  Pratt  v.  Price,  11 
Wend.  (N.  Y.)  127" 

7  S.  V.  Chandler,  42  Vt.  446. 

8  S.  I'.  Keenan,  8  Rich.  (S.  C.)  456. 

9  C.  V.  Hatfield,  107  Mass.  227. 

10  S.  I'.  W^all,  9  Yerg.  (Tenn.)  347;  C.  v.  Stockley,  10  Leigh  (Va.), 
678. 

11  Compare  P.  v.  Martin,  175  N.  Y.  315,  07  N.  E.  589. 

12  Rex  V.  Lewis,  1  Strange,  70;  Avery  ;;.  Ward,  150  Mass.  100,  22  N. 
E.  707;  S.  V.  Dayton,  3  Zabr.  (N.  J.)  40;  O'Bryan  v.  S.,  27  Tex.  App. 
339. 

13  Arden  r.  S.,  11  Conn.  408,  JNI.  902;  S.  v.  Stephenson,  4  McC.  (S.  C.) 
165. 

1^  Hood  I'.  S.,  44  Ala.  81;  Cothran  c.  S.,  39  Miss.  541;  Tuttle  r.  P., 


Sect.  150.]  PERJURY.  135 

Some  authorities  hold  that  one  may  commit  perjury  not- 
withstauding  he  believes  what  he  swears  to  be  true,  if  it  be 
made  to  appear  that  he  had  no  probable  cause  for  his  belief.^ 
But  it  certainly  cannot  be  considered  as  established  law,  that 
one  who  swears  inconsiderately,  or  rashly,  or  even  negligently, 
to  what  he  believes,  though  upon  very  insufficient  data,  to  be 
true,  is  guilty  of  perjury .^ 

Oaths  of  office,  being  in  the  nature  of  promises  of  future 
good  conduct,  and  not  affirming  or  denying  the  truth  or  false- 
hood of  an  existing  fact  within  the  knowledge  of  the  affiant, 
do  not  come  within  the  provision  of  the  law  of  perjury .^ 

It  is  immaterial  whether  the  witness  gives  his  testimony 
under  compulsion,  if  his  testimony  be  required  by  law,*  or  of 
his  own  accord,  as  when  he  voluntarily  gives  privileged  testi- 
mony ;  °  as  also,  it  has  been  held,  whether  he  is  legally  com- 
petent or  incompetent  to  testify,  if  his  testimony  be  actually 
taken.  6  But  this  last  proposition  is  not  universally  accepted 
as  sound.  In  the  former  cases  the  testimony  as  such  was 
good,  it  being  a  personal  matter  with  the  defendant  whether 
he  would  give  it  or  not.  In  the  latter  case  the  testimony  is 
as  a  matter  of  law  incompetent  and  the  consent  of  the  witness 
cannot  render  it  any  the  less  so.''' 

36  X.  Y.  431,  C.  528;  U.  S.  i:  Conner,  3  McLean  (C.  Ct.),  573,  Fed.  Cas. 
Ko.  U,8i7.     Compare  S.  v.  Allen,  94  Mo.  App.  508,  69  S.  W.  604. 

1  P.  V.  McKinney,  3  Parker  C.  C.  (N.  Y.)  510  ;  S.  v.  Knox,  Phil.  (X. 
C.)  312;  C.  V.  Cornish,  6  Binn.  (Pa.)  249. 

2  1  Hawk.  P.  C,  c.  69,  §  2;  S.  v.  Lea,  3  Ala.  602;  Jesse  v.  S.,  20  Ga. 
156;  C.  V.  Thompson,  3  Dana  (Ky.),  301 ;  C  v.  Brady,  5  Gray  (Mass.), 
78;  S.  V.  Cockran,  1  Bailey  (S.  C),  50;  S.  v.  Chamberlain,  30  Yt.  559; 
C.  V.  Cook,  1  Rob.  (Ya.)  729;  U.  S.  v.  Shellmire,  1  Bald.  (C.  Ct.)  370, 
Fed.  Cas.  Xo.  16,271 ;  U.  S.  v.  Atkins,  1  Sprague,  558,  Fed.  Cas.  No. 
14,474;  U.  S.  v.  Stanley,  6  McLean  (C.  Ct.),  409,  Fed.  Cas.  No.  16,376. 

3  1  IIa\Yk.  P.  C,  8th  ed.,  431 ;  S.  v.  Dayton,  3  Zabr.  (N.  J.)  49. 

4  C.  1-.  Knight,  12  Mass.  274. 

5  .Mackin  v.  P.,  115  111.  312,  3  N.  E  222;  S.  v.  Maxwell,  28  La.  Ann. 
361 ;  contra,  U.  S.  v.  Bell,  81  Fed.  830. 

6  Chamberlain  v.  P.,  23  N.  Y.  85;  S.  v.  Molier,  1  Dev.  (N.  C.)  263; 
Montgomery  v.  S.,  10  O.  220. 

''  Compare  ante,  §  148,  and  S.  v.  Keene,  26  Me.  33;  P.  v.  Brown,  54 
Mich.  15,  19  N.  W.  571 ;  P.  v.  Courtney,  94  N.  Y.  490. 


136  CRIMINAL  LAW.  [Sect.  131. 

Swearing  that  a  certain  fact  is  true  according  to  the  affiant's 
knowledge  and  belief,  is  perjury,  if  he  knows  to  the  contrary, 
or  if  he  believes  to  the  contrary,  even  though  the  fact  be  true.^ 
So,  perhaps,  if  he  have  no  knowledge  or  belief  in  the  matter.^ 
So,  testimony  that  he  does  not  remember  certain  material 
transactions  when  in  fact  he  does.^ 

§  151.  Materiality.  —  That  is  material  which  tends  to  prove 
or  disprove  any  fact  in  issue,  although  this  fact  be  not  the 
main  fact  in  issue,  but  only  incidental.  Thus,  where  a  woman 
was  charged  with  larceny,  and  the  defence  was  that  tlie  goods 
stolen  belonged  to  her  husband,  a  false  statement  under  oath 
by  the  alleged  husband  that  he  had  never  represented  that  she 
was  his  wife  is  perjury,  whether  she  was  or  was  not  in  fact  his 
wife.  And  it  is  also  material  whether  it  has  any  effect  upon 
the  verdict  or  not.^  Thus,  the  fact  that  the  perjured  testimony 
was  given  to  a  grand  jury  after  they  had  ordered  indictments 
drawn  is  no  defence.^  So  where  three  persons  were  indicted 
for  a  joint  assault,  audit  was  contended  that  it  was  immaterial, 
if  all  participated  in  it,  by  which  certain  acts  were  done,  it  was 
held  that  evidence  attributing  to  one  acts  which  were  done  by 
another  was  material.'^  So  all  answers  to  questions  put  to  a 
witness  on  cross-examination,  which  bear  upon  his  credibility, 
are  material.^     But  substantial  truth  is  all  that  is  necessary, 

1  Rex  V.  Pedley,  1  Leach,  325;  S.  v.  Cruikshank,  6  Blackf.  (Iiid.)  62; 
Patrick  v.  Smoke,  3  Strobh.  (S.  C.)  147;  Wilson  v.  Kations,  5  Yerg. 
(Teim.)  211;  U.  S.  r.  SheUmire,  1  Bald.  (C.  Ct.)  370,  Fed.  Cas.  No. 
16,271. 

2  1  Hawk.  P.  C,  8th  ed.  433  ;  S.  v.  Gates,  17  N.  H.  873. 

3  P.  V.  Doody,  72  App.  Div.  (N.  Y.)  372,  76  N.  Y.  S.  606. 

4  1  Hawk.  P.  C,  8th  ed.  433;  C.  v.  Grant,  116  Mass.  17,  C.  537; 
Wood  V.  P.,  59  N.  Y.  117. 

5  S.  V.  Faulkner,  175  Mo.  546,  75  S.  W.  116. 

6  S.  V.  Norris,  9  N.  H.  96. 

''  Reg.  V.  Overton,  C.  &  M.  655.  For  cases  showing  various  states  of 
facts  under  which  the  testimony  of  the  defendant  was  held  sufficiently 
material  as  affecting  the  credibility  of  witnesses,  see  Reg.  v.  Baker,  L.  R. 
[1895]  1  Q.  B.  797, K. 419  ;  Reg.  v.  Tyson,  L.  R.  1  C  C.  107,  M.  964;  P. 
V.  Barry,  63  Cal.  62;  Brown  v.  S.  (Fla.),  36  So.  705;  S.  v.  Hunt,  137 
Tnd.  537,  37  N.  E.  409;  S.  v.  Strat,  5  N.  C.  124;  S.  v.  Miller  (R.L),  58 
Atl.  882.      Compare  Reg.   v.  Holden,  12  Cox  CO.   167,  K.  418;  S.  r. 


Sect.  152.]  PERJURY.  137 

and  slight  variations  as  to  time,  place,  or  circumstance,  will  not, 
in  general,  be  material ;  as  where  one  swears  to  a  greater  or  less 
number,  or  a  longer  or  shorter  time,  or  a  different  place,  or  a 
different  weapon,  than  the  true  one,  —  these  circumstances  not 
bearing  upon  the  main  issue. ^  A  false  statement  as  to  the  terms 
of  a  contract  which  is  void  by  the  Statute  of  Frauds,  made  in 
a  proceeding  to  enforce  the  contract,  has  been  held  to  be  im- 
material, and  no  perjury,  whichever  way  the  party  swears,  the 
contract  being  void  ;  ^  while  a  like  false  statement  in  a  pro- 
ceeding to  avoid  the  contract  would  be  material.'^  And  the 
fact  that  an  indictment  is  bad,  or  that  a  judgment  is  reversed, 
does  not  affect  the  question  of  the  materiality  of  the  evidence 
given  to  sustain  it;*  nor  does  the  fact  that  the  evidence  is 
withdrawn  from  the  case,^  or  the  fact  that  the  officer  taking 
the  oath  knew  that  it  was  false  and  took  it  to  entrap  the  de- 
fendant.*^ Whether  materiality  is  a  question  of  law  for  the 
court,  or  of  fact  for  a  jury,  is  a  point  upon  which  the  author- 
ities are  about  equally  divided.' 

§  152.  Evidence.  —  In  prosecutions  for  perjury,  a  single 
witness  (contrary  to  the  general  rule  of  evidence)  to  the  false- 
hood of  the  alleged  oath  is  not  sufficient  to  maintain  the  case, 
since  this  would  be  but  oath  against  oath.  There  must  be  two 
witnesses  to  the  falsity,  or  circumstances  corroborating  a  single 
witness ;  ^  tliough  all  other  material  facts  may  be  proved  by 

Brown,  68  X.  H.  200,  38  Atl.  731 ;  S.  v.  Hattaway,  2  N.  &  McC.  (S.  C.) 
118,  M.  961. 

1  1  Hawk.  P.  C,  c.  69,  §  8. 

2  Rex  I'.  Dunston,  Ry.  &  M.  109. 

3  Reg.  V.  Yates,  C.  &  M.  132. 

4  Reg.  V.  Meek,  9  C.  &  P.  513;  Maynard  v.  P.,  135  HI.  416,  2.5  N.  E. 
740 ;  C.  V.  Tobin,  108  Mass.  426 ;  S.  v.  Brown,  68  N.  H.  200,  38  Atl.  731; 
S.  V.  Rowell,  72  Vt.  28,  47  Atl.  111. 

5  Reg.  V.  Phillpotts,  3  C  &  K.  135. 

6  Thompson  v.  S.,  120  Gn.  132,  47  S.  E.  566. 

^  See  the  cases  collected  in  2  Greenl.  Ev.  (13th  ed.)  §  196,  n.;  also 
2  Bish.  Cr.  Law,  §  1039  a. 

8  Reg.  r.  Hook,  D.  &  B.  606,  K.  422;  S.  v.  Raymond,  20  la.  582, 
C.  534  ;''C.  r.  Pollard,  12  Met.  (Mass.)  225;  S.  v.  Heed,  57  iMo.  252;  S. 
V.  Molier,  1  Dev.  (N.  C)  263;  S.  v.  Peters,  107  N.  C.  876,  12  S.  E.  74; 
U.  S.  V.  Hall,  44  Fed.  864. 


138  CRIMINAL  LAW.  [Sects.  153-154 

a  single  witness,  as  in  other  cascs.^  Nor  can  a  man  be  convicted 
of  perjury  by  sliowing-  that  he  has  sworn  both  ways.  It  must 
be  shown  which  was  the  false  oath.^ 

§  153.  Subornation.  —Subornation  of  perjury  is  the  procur- 
ing of  perjured  testimony.  In  order  to  the  incurring  of  guilt 
under  this  charge,  it  must  appear  that  the  party  procuring  the 
false  testimony  knew,  not  only  that  the  testimony  would  be 
false,  but  also  that  it  would  be  corrupt,  or  that  the  party  giving 
the  testimony  would  knowingly,  and  not  merely  ignorantly, 
testify  falsely .3  And  a  conviction  may  be  had  upon  the  testi- 
mony of  a  single  witness,^  unless  that  witness  be  the  party 
who  committed  the  perjury  ;  in  which  case  he  will  need  cor- 
roboration.5  But  a  person  cannot  be  convicted  of  attempted 
subornation  of  perjury  by  proof  that  he  attempted  to  procure 
a  person  to  swear  falsely  in  a  suit  not  yet  brought,  but  which 
he  intended  to  bring.  There  must  be  some  proceeding  pending, 
or  the  procured  false  testimony  must  constitute  a  proceeding 
in  itself.^ 

§  153a.  Offences  Less  than  Perjury.  —  It  would  seem  clear 
that  there  may  be  a  false  swearing,  not  amounting  to  perjury 
and  yet  so  prejudicial  to  society  as  to  be  punished  as  a  crime.' 

CONTEMPT. 

§  151.  Contempt  of  Court  is  a  crime  indictable  at  common 
law  when  it  amounts  to  an  obstruction  of  public  justice,  and 
it  is  also,  in  many  cases,  summarily  punishable,  without  in- 

1  U.  S.  V.  Hall,  44  Fed.  864. 

2  Reg.  V.  Hughes,  1  C.  &  K.  519  ;  Jackson's  Case,  1  Lewin,  270;  S.  v. 
Williams,  30  Mo.  364;  S.  v.  J.  B.,  1  Tyler  (Vt),  269 ;  Schwartz  v.  C,  27 
Grat.  (Va.)  1025.  But  see  P.  v.  Burden,  9  Barb.  (N.  Y.)  467,  which, 
however,  is  examined  and  denied  to  be  law  in  Schwartz  v.  C,  ante. 

3  S.  V.  Fahey,  3  Fenne.  (Del.)  594,  54  Atl.  690;  C.  v.  Douglass,  5  Met. 
(Mass.)  241;  Stewart  v.  S.,  22  O.  St.  477. 

*  C.  V.  Douglass,  ante. 

5  F.v.  Evans,  40  N.  Y.  1. 

6  S.  V.  Joaquin,  69  Me.  218  ;  P.  v.  Chrystal,  8  Barb.  (N.  Y.)  545.  But 
see  S.  V.  Whittemore,  50  N.  II.  245. 

7  Rex  V.  De  Beauvoir,  7  C.  &  P.  17  ;  Davidson  v.  S.,  22  Tex.  App. 
372,  3  S.  W.  662. 


Sect.  155.]  CONTEMPT.  139 

dictment,  by  the  court,  when  its  rules  are  violated,  its  author- 
ity defied,  or  its  dignity  offended. 

It  is  the  hitter  class  of  cases  which  constitute  what  are 
technically  called  contempts  of  court,  and,  though  not  well 
defined,  may  be  said  to  embrace  all  corrupt  acts  tending  to 
prevent  the  court  from  discharging  its  functions. 

In  the  former  case,  it  belongs  to  the  category  of  crimes, 
though  not  bearing  any  specific  name,  and  is  included  in  the 
general  class  of  offences  against  public  justice. 

In  the  latter  case  it  is  not  strictly  a  crime,  —  though  sub- 
stantially so,  being  punishable  by  fine  and  imprisonment, — 
but  is  noticed  summarily  by  the  courts  as  an  infraction  of 
order  and  decorum,  which  every  court  has  the  inherent  power 
to  punish,  within  cerhain  limits,  —  a  power  necessary  to  their 
efficiency  and  usefulness,  and  resorted  to  in  case  of  viijlation 
of  their  rules  and  orders,  disobedience  of  their  process,  or 
disturbance  of  their  proceedings.^  Since  it  is  not  a  crime,  a 
party  accused  is  not  entitled  to  trial  by  jury,"  nor,  save  where 
provided  by  statute,  to  any  particular  mode  of  procedure.^ 

§  155.  What  Are  Contempts.  —  All  disorderly  conduct,  or 
conduct  disrespectful  to  the  court,  or  calculated  to  interrupt 
or  essentially  embarrass  its  business,  whether  in  the  court- 
room or  out  of  it,  yet  so  near  as  to  have  the  same  effect, 
such  as  making  noises  in  its  vicinity,*  refusal  by  a  witness  to 

1  Ex  parte  Robinson,  19  Wall.  (U.  S.)  505,2  Green's  Cr.  Law  Kep. 
135.  In  Pennsylvania  it  is  held  (Brooker  v.  C,  12  S.  &  E,.  175)  that  a 
court  not  of  record,  as  a  justice  of  the  peace,  has  not  the  power  to  pro- 
ceed summarily  to  punish  for  contempt,  the  power  not  being  necessary,  as 
the  justice  may  proceed  immediately  to  bind  over  for  indictment.  But 
the  case  is  unsupported  elsewhere,  and  must  stand,  if  it  can  stand  at  all, 
upon  some  pecuUarity  of  the  statutes  of  that  State.  See  on  this  question 
and  on  the  question  of  contempts  of  Legislative  and  other  bodies,  2 
Bish.  New  Cr.  L.,  §  211  et  seq. 

'^  McDonnell  v.  Henderson,  71  la.  619,  38  N.  W.  512  ;  In  re  Deaton, 
105  N.  C.  59,  11  S.  E.  214. 

3  Ex  parte  Terry,  128  U.  S.  289;  Ex  parte  Savin,  131  U.  S.  267; 
accord,  Hardin  v.  Silvari,  111  la.  157,  86  N.  W.  223;  Toozer  v.  S.  (Neb.), 
97  N.  W.  581. 

*  S.  V.  Coulter,  Wright  (Ohio),  421. 


140  CRIMINAL  LAW.  [Sect.  155. 

attend  court,i  or  to  be  sworn  or  to  testify,''^  or  of  any  officer  of 
court  to  do  his  duty ,3  or  of  a  person  to  whom  a  habeas  cor- 
pus is  directed  to  make  return,*  assaulting  an  officer  of  the 
court,  or  any  other  person  in  its  presence,^  or  one  of  the 
judges  during  recess,^  improperly  communicating  with  a 
juror,'  or  by  a  juror  with  another  person,^  will  usually  be 
dealt  with,  upon  their  occurrence,  j)ende7ite  lite,  in  order  to 
prevent  the  evil  consequences  of  a  wrongful  interference  with 
the  course  of  justice. 

In  other  cases,  proceedings  more  or  less  sumniary  will  be 
had,  whenever  a  corrupt  attempt,  by  force,  fraud,  bribery,  in- 
timidation, or  otherwise,  is  made  to  obstruct  or  impede  the 
due  administration  of  justice.  Thus,  the  courts  will  take  no- 
tice of,  and  punish  in  a  summary  way,  the  use  by  an  attorney 
of  contemptuous  language  in  the  pleadings,^  or  a  resort  to  the 
public  press  in  order  to  influence  tlie  proceedings  in  a  pending 
case,^*^  or  any  libellous  publication,  though  indictable  as  such, 
relative  to  their  proceedings,  tending  to  impair  public  confi- 
dence and  respect  in  them.^^  So  the  courts  will  intervene  in 
like  manner  if  attempts  are  made  to  bril)e  or  intimidate  a 
judge,  juror,  or  any  officer  of  court,  in  relation  to  any  matter 
pending  before  them,  or  upon  which  they  are  to  act  officially.^^ 

1  Johnsou  V.  Wideraan,  Dudley  (S.  C),  70. 

2  E,: -parte  Stice,  70  Cal.  51,  11  P.  459;  Lott  v.  Barrel,  2  Mill  (S.  C), 
167;  Stansbury  v.  Marks,  2  Dall.  (U.  S.)  213. 

3  Chittenden  i'.  Brady,  Ga.  Dec.  219. 

4  S.  V.  Philpot,  Dudley  (Ga.),  46. 

6  P.  V.  Turner,  1  Cal.  152 ;  Ex  parte  Terry,  128  U.  S.  289. 
6  S.  V.  Garland,  25  La.  Ann.  532. 
'  S.  V.  Doty,  32  N.  J.  L.  403. 

8  S.  V.  Helvenston,  R.  M.  Charlt.  (Ga.)  48. 

9  S.  r.  Keene,  11  La.  5.0(i. 

10  Matter  of  Darby,  3  Wheeler  Cr.  Ca.s.  (N.  Y.)  1. 

11  Reg.  V.  Shipworth,  12  Cox  C.  C.  371,  1  Green  Cr.  Law  Rep.  121  :  S. 
i\  jNIorrill,  16  Ark.  384;  P.  r.  Wilson,  64  111.  195,  1  Am.  Cr.  Rep.  107;  S. 
r.  Earl,  41  Ind.  464  ;  In  re  Sturock,  48  N.  H.  428 ;  In  re  Cheeseman,  49 
N.  J.  L.  115,  0  Atl.  513;  P.  v.  Freer,  1  Caines  (X.  Y.),  485;  In  re  Moore, 
03  X.  C.  397;  Oswald's  Case,  1  Dall.  (Pa.)  319. 

12  Charlton's  Case,  2  M.  &  C.  316  ;  Reg.  i:  Onslow,  12  Cox  C.  C.  358, 
1  Green's  Cr.  Law  Rep.  110;  S.  v.  Bee  Pub.  Co.,  60  Neb.  282,  83  N.  W. 
204;  S.  V.  Doty,  32  X.  J.  L.  403. 


Sect.  155«.]  CONTEMPT.  141 

They  will  also  punish  the  circulation  of  a  printed  statement 
of  a  pending  case,  before  trial,  by  oue  of  the  parties  to  the 
prejudice  of  the  other  ;  ^  publisliing  a  report  of  the  proceed- 
ings of  a  trial,  contrary  to  the  direct  order  of  court ;  ^  or 
publishing  such  proceedings  with  comments  calculated  to 
prejudice  the  rights  of  the  parties ;  ^  preventing  the  attend- 
ance of  a  witness,  after  summous,  or  procuring  his  al)scnce, 
so  that  he  could  not  be  summoned  ;  ^  procuring  a  continuance 
by  a  false  pretence  of  illness;'^  and,  generally,  all  such  acts 
of  any  and  all  persons  as  tend  substantially  to  interfere  with 
their  efficient  service  in  the  administration  of  justice  for  which 
they  are  established. 

§  155a.  Officers  of  the  Court,  are  equally  amenable  to  it  for 
misbehavior  in  their  official  capacity.  Thus  a  sheriff  may  be 
attached  for  contempt  for  failing  to  levy  properly,^  or  for  giv- 
ing notice  to  a  defendant  so  that  he  might  escape  a  warrant 
issued  for  his  arrest ; "  so  a  clerk  for  refusing  to  issue  a  writ 
ordered  by  the  court.^ 

An  attorney  is  an  officer  of  the  court,  and  as  such  he  may 
be  punished  for  contempt  if  his  conduct  merits  it.  Thus, 
leading  a  lynching  in  the  court-yard,  although  the  court  is  not 
at  the  time  in  session ;  ^  so  advising  a  client  to  disobey  the 
order  of  the  court. ^"^     And  if  the  contempt  is  sufficiently  gross. 


1  Rex  V.  JoUiffe,  4  T.  R.  285 ;  hi  re  Crown  Bank,  U  Ch.  Div.  649 ; 
Cooper  V.  P.,  18  Colo.  o37,  373,  22  P.  790. 

2  Rex  V.  Clement,  4  B.  &  Aid.  218. 

3  Reg.  V.  O'Dogherty,  5  Cox  C.  C.  348. 

*  McConnell  v.  S.,46  Ind.  298;  Montgomery  v.  Judge,  100  Mich.  436, 
59  N.  w,  148;  S.  V.  Buck,  62  N.  H.  670;  Fisher  v.  McDaniel,  9  Wyo. 
457,  64  P.  10.56;  Ex  parte  Savin,  131  U.  S.  267.  See  also  Hale  v.  S.,'55 
O.  St.  210,  45  N.  E.  199. 

5  Welch  V.  Barber,  52  Conn.  147. 

6  S.  V.  Tipton,  1  Blackf.  (Ind.)  166  ;  Pitman  v.  Clark,  1  McMul. 
(S.  C.)316. 

^  S.  V.  O'Brien,  87  Minn.  161,  91  N.  W.  297. 

8  Terr.  v.  Clancy,  7  N.  M.  580,  37  P.  1108. 

9  Ex  parte  Wall,  107  U.  S.  265. 

10  Anderson  v.  Comptois,  109  Fed.  971 ;  Terr.  v.  Clancy,  ante.  See  P. 
V.  Court,  29  Colo.  182,  68  P.  242. 


142  CRIMINAL  LAW.  [Sect.  156. 

the  punishment  may  be  suspension  or  disbarment.^  But  a 
distinction  must  be  made  between  the  disciplinary  power  of 
a  coui-t  to  punish  for  contempts,  which  must  be  acts  that 
affect  the  particular  court  that  punishes,  and  arc  of  the  gen- 
eral character  discussed  above  ;  and  the  right  of  the  court  to 
suspend  or  disbar  attorneys  for  unprofessional  conduct,  al- 
though the  circumstances  may  not  amount  to  a  contempt. 
The  latter  power  can  be  exercised  only  when  the  conduct  of 
the  attorney  is  such  as  to  show  him  unfit  to  be  a  member  of 
the  profession.2  It  is,  however,  disciplinary  and  summary  in 
its  nature,  and  is  not  governed  by  the  rules  of  ordinary  trials.^ 
§  156.  Contempt  of  Process.  —  One  is  guilty  of  contempt, 
and  punishable  therefor,  who,  being  served  with  process  by  a 
court  of  competent  jurisdiction,  wilfully  and  improperly  refuses 
to  obey  the  process.*  Thus  a  refusal,  after  service  of  the 
writ  or  notice  of  the  making  ^  of  the  order  or  decree,  to  obey 
an  injunction,''  a  decree  or  order  of  court,'  or  a  writ  of  pro- 
hibition or  mandamus,^  is  contempt.  It  is  likewise  contempt 
for  an  inferior  court  to  disobey  the  orders  of  a  superior  court ;  ^ 
or  for  an  officer  of  court,  as  a  receiver,  to  disobey  the  order  of 
the  court.i^ 

1  Ex  parte  Wall,  ante. 

2  Ex  parte  Kobinson,  19  Wall.  (U.  S.)  505. 

8  Re  Hard  wick,  L,  R.  12  Q.  B.  D.  148.  See  further  as  to  this  distinc- 
tion, Beene  v.  S.,' 22  Ark.  149;  P.  v.  Turner,  1  Cal.  U3;  P.  v.  Good- 
rich,' 79  111.  148;  Re  Delano,  58  N.  H.  5;  Matter  of  Eldridge,  82  N.  Y. 
161;  Ex  parte  Bradley,  7  Wall.  (U.  S.)  346. 

*  2  Bish.  Crim.  Law,  §  242. 

6  S.  i;.  Court,  29  Mont.  230,  74  P.  412 ;  Williamson  v.  Pender,  127 
N.  C.  481,  37  S.  E.  495. 

6  Winslow  V.  Nayson,  113  Mass.  411. 

7  I^Iayor  of  Bath  v.  Pinch,  4  Scott  299 ;  Stuart  r.  Stuart,  123  Mass.  370  ; 
Buffum's  Case,  13  N.  H.  14;  Yates  u.  Russell,  17  Johns.  (X.  Y.)  461; 
Knuckle  v.  Kunckle,  1  Dall.  (Pa.)  364. 

8  Rex  V.  Edyvean,  3  T.  R.  352 ;  Rex  v.  Babb,  3  T.  R.  579 ;  S.  v.  Judge 
of  Civil  District  Court,  38  La.  Ann.  43;  Board  of  Commissioners  of 
Leavenworth  v.  Sellew,  99  U.  S.  624. 

8  Patchin  v.  Mayor  of  Brooklyn,  13  Wend.  (X.  Y.)  664. 
10  Tindall  v.  Westcott,  113  Ga.  1114,  39  S.  E.  450;  Cartwright's  Case, 
114  Mass.  230;  Williamson  v.  Pender,  127  N.  C.  481,  37  S.  E.  495;  Tor- 
nanses  v.  Melsing,  106  Fed.  775. 


Sects.  157,  158.]  CONTEMPT.  143 

■\Yhere  the  court  is  without  jurisdiction  in  the  premises,  its 
order  is  of  course  ineffective,  and  a  disobedience  thereof  is  no 
contempt.  Tims  where  a  person  was  summoned  as  a  witness 
and  the  court  ordered  him  to  execute  a  conveyance  of  land 
his  refusal  was  no  contempt. ^ 

§  loT.  Contempt  of  Jury. —  One  may  be  punished  for  con- 
tempt by  reason  of  misconduct  before  the  grand  jury ,2  or  by 
publishing  a  libel  on  the  grand  or  petit  jury.^  And  it  is  con- 
tempt for  a  reporter  to  conceal  himself  in  the  jury  room,  and 
to  report  the  deliberations  of  the  jurors.* 

§  158.  Proceedings. —  When  the  contempt  is  committed  in 
the  presence  of  the  court,  the  offender  may  be  ordered  into 
custody,  and  proceeded  against  at  once. 

But  if  the  offence  be  not  committed  in  presence  of  the  court, 
the  offender  is  usually  proceeded  against  by  an  attachment 
preceded  by  an  order  to  show  cause,  but  without  an  order  to 
show  cause  if  the  exigency  demands  it.° 

Whether  proceedings  will  be  had,  in  the  last  class  of  cases, 
for  a  contempt  wliereby  the  proceedings  in  a  particular  case 
are  improperly  obstructed  or  otherwise  interfered  with  after 
the  case  is  concluded,  is  perhaps  not  perfectly  clear;  but  the 
better  opinion  seems  to  be  that  they  may,  at  any  time  before 
the  adjournment  of  the  court  for  the  term  at  which  the  con- 
tempt is  committed.^  In  a  case  apparently  to  the  contrary  " 
there  was  no  contempt,  and  the  dictum  is  not  supported  by 
the  citation  of  any  authority. 

1  Ex  parte  Pahia,  13  Hawaii,  575;  accord,  Tomsky  v.  Court,  131  Cal. 
620,  63  P.  1020;  S.  v.  Sommerville,  105  La.  273,  29  So.  705.  See  Gardner 
V.  P.,  100  111.  App.  2.54. 

2  In  re  Gannon,  69  Cal.  511,  11  P.  240. 

3  Little  V.  S.,  90  Ind.  338;  In  re  Cheeseman,  49  N.  J.  L.  115,  6  Atl. 
513. 

4  P.  V.  Barrett,  56  Hun  (N.  Y.),  351. 

6  Welch  V.  Barber,  52  Conn.  147;  Whittera  l\  S.,  36  Ind.  196  ;  S.  r. 
Matthews,  37  N.  H.  450 ;  P.  r.  Kelly,  24  N.  Y.  74. 

6  Pveg.  V.  O'Dogherty,  5  Cox  C.  C.  348;  Johnson  v.  Wideman,  Dudley 
(Ga.),  70;  Clarke's  Case,  12  Cush.  (Mass.)  320. 

'  Robertson  v.  Bingley,  1  McCord  (S.  C),  Ch.  333, 


144  CRIMINAL  LAW.  [Sects.  159-162. 

RESCUE. —  ESCAPE. —  PRISON   BREACH. 

§  159.  These  are  analogous  offences  under  the  general 
category  of  hindrances  to  public  justice.  Few  cases  at  com- 
mon law  have  occurred  in  this  country,  the  several  offences 
being  generally  matter  of  statutory  regulation. 

§  160.  Rescue  is  "the  forcibly  and  knowingly  freeing  an- 
other from  an  arrest  or  imprisonment."  ^  If,  therefore,  the 
rescuer  supposes  the  imprisonment  to  be  in  the  hands  of  a 
private  person,  and  not  of  an  officer,  he  is  not  guilty,  as  the 
imprisonment  must  be  a  lawful  one.^  It  is  essential  that  the 
deliverance  should  be  complete,  otherwise  the  offence  may  be 
an  attempt  merely.^ 

§  IGl.  Escape  is  the  going  away  without  force  out  of  his 
place  of  lawful  confinement  Ijy  the  prisoner  himself,  or  the 
negligent  or  voluntary  permission  by  tlie  officer  having  custody 
of  such  going  away.*  The  escape  must  be  from  a  lawful  con- 
finement. -And  if  the  arrest  be  by  a  private  person  without 
warrant,  though  legal,  yet  if  the  custody,  without  bringing  the 
party  before  a  magistrate,  be  prolonged  for  an  unreasonable 
period,  the  escape  will  be  no  offence  ;  and  although  it  seems 
to  have  been  held,  in  this  country,  that,  after  an  arrest  volun- 
tarily made  by  a  private  person  without  warrant,  he  may  let 
the  prisoner  go  without  incurring  guilt,  by  the  common  law^ 
such  private  person  will  be  guilty  if  he  do  not  deliver  over  the 
arrested  party  to  the  proper  officer.^  If  the  warrant  on  wliich 
the  arrest  is  made  be  void,  neither  the  prisoner  nor  the  officer 
is  liable  for  an  escape.'^ 

§  162.   Prison  Breach  is  the   forcible  breaking  and   going 
away  out  of  his  place  of  lawful  confinement  by  the  prisoner. 

1  4  BL  Cora.  131. 

2  S.  V.  Hilton,  26:Mo.  199. 
8  S.  V.  Murray,  15  Me.  100. 

4  Xall  V.  S.,  34  Ala.  262;  S.  v.  Doud,  7  Conn.  384,  M.  32 ;  Riley  v.  S., 
16  Conn.  47;  C.  v.  Sheriff,  1  Grant  (Pa.),  187;  Luckey  I'.S.,  14  Tex.  400. 

5  Habersham  v.  S.,  56  Ga.  61. 

6  2  Hawk.  r..  C,  c.  20,  §§  1-6. 

7  8.  V.  Leach  7  Conn.  452;    Housh  r.  P.,  75  111.  487;    Hitchcock  t'. 
Baker,  2  Allen  (Mass.),  431 ;  C.  v.  Crotty,  10  Allen  (Mass.),  403. 


Sect.  162.]  RESCUE.  —  ESCAPE.  — PRISON  BREACH.  145 

It  is  distinguished  from  escape  by  the  fact  that  there  must  be 
a  breaking  of  the  prison.  There  must  also  be  an  exit,^  in 
order  to  constitute  the  offence.  The  imprisonment  must  be 
la\Yful,  but  it  is  immaterial  whether  the  prisoner  be  guilty  or 
innocent.^ 

A  prison  is  any  place  where  a  person  is  lawfully  confined, 
whether  it  be  in  the  stocks,  in  the  street,  or  in  a  public  or 
private  house.     Imprisonment  is  but  a  restraint  of  liberty.^ 

At  common  law,  the  punishment  of  the  several  offences  was 
the  same  as  would  have  been  inflicted  upon  the  escaped  or 
rescued  prisoner."^  It  is  now,  however,  generally  a  subject  of 
special  statute  regulation. 

1  2  Hawk.  P.  C,  c.  18,  §  12. 

2  Reg.  V  Waters,  12  Cox  C.  C.  390;  Habersham  v.  S.,  56  Ga.  61; 
C.  V.  jNliller,  2  Ash.  (Pa.)  61.  Upon  the  general  subject  see  2  Hawk.  P. 
C.  c.  18-21 ;  1  Gab.  Or.  Law,  305  et  seq. 

3  2  Hawk.  P.  C,  c.  18,  §  4. 

4  2  Hawk.  P.  C,  c.  19,  §  22 ;  C.  i'.  Miller,  2  Ash.  (Pa.)  61. 


10 


146 


CRIMINAL  LAW. 


[Sects.  163,164. 


CHAPTER   lY. 

OFFENCES   AGAINST   THE   PUBLIC   TRANQUILLITY,  HEALTH, 
AND   ECONOMY. 


164.  Affray. 

165.  Riot.  —  Rout.  —  Unlawful     As- 

sembly. 
167.    Forcible  Entry  aud  Detainer. 

171.  Eavesdropping. 

172.  Libel  and  Slander. 


§  177.    Engrcssing. 
Regrating. 
178.    Nuisance. 
183.    Attempt. 
186.    Conspiracy. 


ForestaUins:.  — 


§  163.  All  offences  against  the  public  peace  are  criminal, 
as  has  been  seen  ;  ^  but  the  law  protects  not  only  the  physical 
peace  of  the  public,  but  also  the  established  order  and  economy 
of  the  government.  As  part  of  this  established  order,  tiie 
public  trade  seems  to  some  extent  to  be  protected  ;  at  least, 
against  such  combinations  and  conspiracies  as  individuals 
cannot  protect  themselves  against. 

Attempts  and  conspiracies  are  crimes  of  this  class,  being 
acts  prejudicial  to  the  general  well-being  of  the  State. 


AFFRAY. 

§  164.  An  Affray  is  the  fighting,  by  mutual  consent,  of 
two  or  more  pci-sons  in  some  public  place,  to  the  terror  of  the 
people.^  The  meaning  of  the  word  is,  that  which  frightens ; 
and  the  offence  consists  in  disturbing  the  public  peace  by 
bringing  on  a  state  of  fear  by  means  of  such  fighting,  or  such 
threats  of  fighting  as  are  calculated  to  excite  such  fear,  whetbcr 
there  be  actual  fear  or  not  being  immaterial.  A  more  friendly 
sculUe^  or  a  mere  wordy  dispute,  therefore,  without  actual  or 
threatened  violence  by  one  party  or  the  other,  does  not  amount 

1  Ante,  §  14. 

2  Wilson  V.  S.,  3  Heisk.  (Tenn.)  278;  Simpson  r.  S.,  5  Yerg.  (Tenn.) 
356 ;  4  Bl.  Com.  146. 

8  S.  V.  Freeman,  127  N.  C.  544,  37  S.  E.  206. 


Sect.  1C5.]       RIOT. -TIOUT.  —  UNLAWFUL  ASSEMBLY.  147 

to  an  affray. 1  But  if  actual  or  threatened  violence  is  resorted 
to  by  one  who  is  provoked  thereto  by  the  words  of  the  other, 
this  will  make  the  latter  guilty,  even  though  he  does  not  strike 
back.-'  It  is  sometimes  held  that  consent  is  not  essential. 3 
But  it  is  obvious  that  one  who  is  assaulted,  and  merely  uses 
such  force  as  is  necessary  to  beat  off  his  assailant,  is  guilty  of 
no  offence.  He  is  not  lighting,  in  the  sense  of  the  definition, 
but  is  merely  exercising  his  right  of  self-defence.'* 

The  place  must  be  a  public  one.  A  field,  therefore,  sur- 
rounded by  a  dense  wood,  a  mile  away  from  any  highway  or 
other  public  place,  does  not  lose  its  private  character  by  the 
casual  presence  of  three  persons,  two  of  whom  engage  in  a 
figlit.^  An  enclosed  lot,  however,  in  full  view  of  the  public 
street  of  a  village,  thirty  yards  distant,^  is  a  public  place, 
though  a  highway  itself  is  not  necessarily  a  public  place,  be- 
cause by  disuse,  or  the  undergrowth  of  trees,  or  otherwise,  it 
may  have  become  concealed  from  public  view.''  A  light  begun 
in  private,  and  continued  till  a  public  place  is  reached,  becomes 
an  affray.^ 

By  the  definition,  it  requires  two  to  make  an  affray.  If, 
therefore,  one  of  two  indicted  persons  be  acquitted  the  case 
fails  as  to  the  otlier.'^ 

RIOT.  KOUT.  UNLAWFUL    ASSEMBLY. 

§  165.  A  Riot  is  a  tumultuous  disturbance  of  the  peace,  by 
three  or  more  persons  assembling  together  of  their  own  au- 

1  Hawkins  v.  S.,  10  Ga.  322;  S.  v.  Downing,  74  N.  C.  184;  S.  v.  Sum- 
ner, 5  Strobh.  (S.  C.)  5-5. 

••2  Hawkins  v.  S.,  ante;  Blackwell  v.  S.,  119  Ga.  oU,  4(3  S.  E.  432; 
S.  V.  Downing,  anie  ;  S.  v.  Perry,  5  Jones  (N'.C),  9;  S.  v.  Fanning,  94 
N.  C.  910;  S.  V.  Sumner,  ante.     Bnt  see,  cumtra,  O'Neill  r.  S.,  16  Ala.  65. 

8  Cashw.  S  ,  2  Overt.  (Tenn.)  198. 

4  See  also  Kliun  v.  S.,  1  Blackf.  (Ind.)  377. 

5  Taylor  i\  S.,  22  Ala.  15.  Compare  S.  v.  Fritz,  133  N.  C.  725,  15  S. 
E.  957.     See  also  S.  r.  Ileflin,  8  Ilnmph.  (Tenn.)  St. 

*^  Carwile  v.  S.,  35  Ala.  392.  Compare  Gamble  v.  S.,  113  Ga.  701, 
39  S.  E.301. 

7  S.  /'.  Weekly,  29  Ind.  2013. 

8  Wilson  V.  S.,  3  Ileisk.  (Tenn.)  278. 

3  Hawkins  v.  S.,  13  Ga.  322.     See  also  §  165, 


148  CRIMINAL   LAW.  [Sect.  166. 

thority,  with  an  inteut  to  assist  one  another  against  any  one 
who  shall  oppose  them  in  the  execution  of  some  enterprise  of  a 
private  nature,  and  afterwards  actually  executing  the  same  in 
a  violent  and  turbulent  manner,  to  the  terror  of  the  people, 
whether  the  act  itself  be  lawful  or  unlawful. ^ 

A  Rout  is  a  similar  meeting  upon  a  purpose  which,  if  exe- 
cuted, would  make  them  rioters,  and  which  they  actually 
make  a  motion  to  execute.  It  is  an  attempt  to  commit  a 
riot.2 

An  Unlawful  Assembly  is  a  mere  assembly  of  persons  upon  a 
purpose  which,  if  executed,  would  make  them  rioters,  but 
which  they  do  not  execute,  or  make  any  motion  to  execute.^ 

A  like  assembly  for  a  public  purpose,  as  where  it  is  the 
intent  of  a  riotous  assembly  to  prevent  the  execution  of  a 
law  by  force,  or  to  release  all  prisoners  in  the  public  jail,  is 
treason.* 

It  has  been  held  that  an  unlawful  assembly,  armed  with 
dangerous  weapons,  and  threatening  injury,  to  the  terror  of 
the  people,  amounts  to  a  riot,  even  before  it  proceeds  to  the 
use  of  force.^ 

Two  persons,  it  has  also  been  held,  with  a  third  aiding  and 
abetting,  may  make  a  riot.^ 

That  the  assembly  is  in  its  origin  and  beginning  a  lawful 
one  is  immaterial,  if  it  degenerate,  as  it  may,  into  an  unlawful 
and  riotous  one." 

§  166.  The  Violence  Necessary  to  constitute  a  riot  need  not 
be    actually    inflicted    upon    any    person.     Threatening   with 

1  1  Hawk.  P.  C,  8th  ed.,  513,  §  1 ;  S.  v.  Russell,  45  X.  H.  S3. 

2  S.  V.  Sumuer,  2  Speeds  (S.  C),  599. 

3  1  Hawk.  P.  C,  8th  ed.,  513-516,  §§  1,  S,  9;  4  Bl.  Com.  UG;  Rex  i'. 
Birt,  5C.  &P.  154,  K.  387:  Reg.  v.  Vincent,  9  C.  &  P.  91,  K.  391 ;  Baukus 
V.  S.,  4  Ind  114. 

4  4  Bl.  Com.  147 ;  Judge  Khig's  Charge,  4  Pa.  L.  J.  29. 

^  C.  1-.  Hershbei"ger,  Lewis  Cr.  L.  (Pa.)  72;  S.  r.  Brazil,  Rice  (S.  C), 
257. 

6  S,  V.  Straw,  33  Me.  554. 

■f  Reg.  V.  Soley,  2  Salk.  594;  S.  v.  Snow,  18  Me.  340;  Judge  King's- 
Charge,  4  Pa.  L.  J.  31 ;  S.  v.  Brooks,  1  Hill  (S.  C),  361 ;  1  Hawk.  P.  C, 
8th  ed.,  514,  §  3.     But  see  S.  v.  Stalcup,  1  Ired.  (X.  C.)  30. 


Sect.  166.]        RIOT.  — ROUT.  — UNT. AWFUL  ASSEMBLY.  149 

pistols,  or  clubs,  or  even  by  words  or  gestures,  to  injure  if 
interfered  with  in  the  prosecution  of  the  unlawful  jjurpose, 
or  anv  other  demonstration  calculated  to  strike  terror  and 
disturb  the  public  peace,  is  a  sufficient  violence  to  constitute 
the  assembly  riotous  ;  ^  thus  a  tumultuous  and  threatening 
assemblage  which  without  any  si^ecific  act  of  violence  pre- 
vents a  sheriff  from  removing  a  prisoner  to  another  jail,  is  a 
riot.2  So  where  several  attempt  by  tlireats  and  menaces  to 
rescue  a  lawful  prisoner,  they  are  guilty  of  a  riot.^  Indeed, 
it  has  been  held  that  a  trespass  to  property  in  the  presence  of 
a  person  in  actual  possession,  though  there  is  no  actual  force, 
amounts  to  a  riot.*  The  disturbance  of  the  peace  by  exciting 
terror,  is  the  gist  of  the  offence.'  Hence  it  is  immaterial 
whether  the  act  sought  to  be  performed  is  one  that  is  in 
itself  lawful  or  unlawful.^  To  disturb  another  in  the  enjoy- 
ment of  his  lawful  right  is  a  trespass,  which,  if  done  by  three 
or  more  persons  unlawfully  combined,  with  noise  and  tumult, 
is  a  riot ;  as  the  disturbance  of  a  public  meeting,"  or  making 
a  great  noise  and  disturbance  at  a  theatre  for  the  purpose  of 
breaking  up  the  performance,  though  without  offering  personal 
violence  to  any  one ;  ^  or  even  going  in  the  night  upon  a  man's 
premises  and  shaving  his  horse's  tail,  if  it  be  done  with  so 
much  noise  and  in  such  manner  as  to  rouse  the  proprietor  and 
alarm  his  family.^ 

Violent  threatening,  and  forcible  methods  of  enforcing 
rights,  whether  public  or  private,  are  not  lawful.^'^ 

1  Rex  r.  Hughe-!,  -i  C.  &  P.  373;  Bell  r.  :Mallory,  61  HI.  167;  S.  r. 
Calder.  2  McCorti  (S.  C).  462 :  S.  r.  Jackson,  1  Speer  (S.  C),  13. 

2  Green  r.  S..  109  Ga.  536.  35  S.  E.  97. 
8  Fisher  v.  S..  78  Ga.  25S. 

*  S.  r.  Fisher,  1  Dev.  (X.  C.)  oOi. 

5  s.  r.  Renton,  15  X.  H.  169 :  S.  r.  Brooks,  1  Hill  (S.  C),  361. 

«  Kiphart  v.  S.,  42  lud.  273:  S.  r.  Boies,  34  Me.  235;  S.  v.  York.  70 
X.  C.  66. 

■  S.  r.  Townsend.  2  Harr.  (Del.)  543:  C.  r.  Runnels.  10  Mass.  518; 
S.  i:  Brazil.  Rice  (S.  C).  257:  Judge  King's  Charge.  4  Pa.  L.  J.  29.  3S. 

8  Clifford  V.  Brandon.  2  Camp.  35S :  S.  v.  Brazil,  ante. 

9  S.  r.  Alexander.  7  Rich.  (S.  C.)  5. 

10  Judge  King's  Charge.  4  Pa.  L.  J.  29,  31. 


150  CRIMINAL  LAY/.  [Sects.  167,  168. 


FORCIBLE    ENTRY    AND    DETAINER. 

§  167.  This,  though  not  strictly  a  common  law  offence, 
was  made  so  at  an  early  date  by  statute  in  England  ;  and 
is  now  in  many  of  the  States,  by  adoption,  a  part  of  their 
common  law.  It  consists  in  "violently  taking  or  keeping 
possession  of  lands  and  tenements,  with  menaces,  force  and 
arms,  and  without  the  authority  of  law."  ^ 

§  168.  Force  and  Violence.  —  The  entry  or  detainer  must, 
in  order  to  constitute  an  indictable  offence,  be  with  such 
force  and  violence,  or  demonstration  of  force  and  violence, 
threatening  a  breach  of  the  peace  or  bodily  harm,  and  calcu- 
lated to  inspire  fear,  and  to  prevent  those  who  have  the  right 
of  possession  from  asserting  or  maintaining  their  right,  as  to 
become  a  matter  of  public  concern  in  contradistinction  to 
a  mere  private  trespass.^  Such  force  as  will  tend  to  a  breach 
of  the  peace  may  not  be  used,^  but  only  such  force  is  per- 
missible as  would  sustain  a  plea  in  justification  of  7iiolliter 
manus  imposuit}  That  degree  of  force  which  the  law  allows 
a  man  to  use  in  defence  of  his  lawful  possession,  it  does  not 
allow  him  to  use  in  recovering  property  of  which  he  has  been 
dispossessed,  if  it  be  tumultuous  or  riotous,  or  tends  to  a 
breach  of  the  peace.  It  does  not  allow  a  breach  of  the  peace 
to  regain  possession  of  property,  or  in  redress  of  private 
wrongs.'^     Like  circumstances  accompanying  the  wrongful  dc- 

1  4  Bl.  Com.  148. 

2  Rex.  V.  Wilson,  8  T.  R.  357,  C.  471 ;  Harding's  Case,  1  Greenlf. 
(Me.)  22,  C.  472;  Benedict  v.  Hart,  1  Gush.  (Mass  )  487;  C.  v.  Shattuok, 
4  Cush.  (Mass.)  141;  S.  v.  Pearson,  2  N.  H.  550;  Wood  v.  Phillips,  43 
N.  Y.  152;  C.  V.  Keeper,  &c.,  1  Aslim.  (Pa.)  140;  S.  v.  Cargill,  2  Brev. 
(S.  C.)  445 ;  1  Hawk.  P.  C,  c.  28,  §  27. 

^  But  the  mere  force  implied  in  the  trespass  is  not  enough ;  and  an 
indictment  which  has  only  an  allegation  that  the  defendant  broke  and 
entered  "  vi  et  armis  "  is  not  suflBcient  :  Rex.  v.  Blake,  3  Burr.  1731,  C. 
473;  C.  V.  Taylor,  5  Binney  (Pa.),  277,  M.  44. 

*  Fifty  Associates  v.  Howland,  5  Cush.  (Mass.)  214. 

5  Gregorys.  Hill,  8  T.  R.  299;  Sampson  v.  Henry,  11  Pick.  (Mass.) 
379;  Hyatt  v.  Wood,  3  Johns.  (N.  Y.)  239;  Davis  v.  AVhitridge,  2 
Strobh.  (S.  C.)  232;  3  Bl.  Com.  4. 


Sect.  169.]  ENTRY   AND   DETAINER.  151 

tention  of   the  possession  of  real   property  will  constitute  a 
forcible  detainer.^ 

It  is  immaterial  how  the  intimidation  is  produced,  whether 
by  one  or  many,  by  actual  force  or  by  threats,  or  by  tumul- 
tuous assemblies,  or  by  weapons,  or  in  whatever  way  it  may 
be  produced,  provided  it  actually  occurs,  or  might  reasonably 
be  expected  to  occur,  if  the  parties  entitled  to  possession 
should  be  present  and  in  a  position  to  be  affected  by  it. 
IJence  it  is  not  necessary  to  show  that  the  person  in  posses- 
sion was  actually  expelled  by  force  if  the  display  was  such 
as  to  deter  him  from  offering  resistance.^  But  his  fear  must 
be  a  reasonable  one.-'^  And  entry  and  detainer  by  .  such 
demonstrations  of  force  and  violence  are  equally  indictable, 
although  no  one  be  actually  present  and  in  possession  of  the 
premises  entered  to  be  intimidated  thereby,"^ 

Nor  need  the  display  of  force  be  upon  the  actual  premises ; 
for  if  the  owner  be  seized  and  kept  away,  for  the  purpose  of 
thwarting  his  resistance,  and  an  entry  be  then  made  during 
such  enforced  absence,  though  peaceably,  it  will  amount  to  a 
forcible  entry  and  detainer.^  And  a  peaceable  entry  followed 
by  a  forcible  expulsion  of  the  owner  will  also  constitute  the 
offence.^  The  threats  of  violence  must  be  personal.  Xo 
threats  of  injury  to  property  will  be  sufficient.^  A  peaceable 
entry  and  detainer  even  though  by  trick  is  not  criminal. ^ 

§  169.  What  May  Be  Entered  upon  or  Detained.  —  Peaceable 
occupancy,  without  reference  to  title,  is  the  possession  whicli 
the  law  says  shall  not  be  taken  away  or  detained  by  force.^ 

1  1  Hawk.  P.  C,  8th  ed.,  c.  28,  §  30;  C.  v.  Dudley,  10  Mass.  403  ;  P. 
V.  Rickert,  8  Cow.  (X.  Y.)  226. 

2  Williams  r.  S.,  120  Ga.  488,  48  S.  E.  149. 

3  S.  V.  :\Iills,  104  N.  C.  905,  10  S.  E.  676. 

*  P.  V.  Field,  52  Barb.  (N.  Y.)  198;  1  Hawk.  P.  C,  8th  ed.,  c.  28, 
§§  26,  29. 
s  Ibid. 

6  3  Bac.  Abr.,  For.  Entry  (B). 

7  1  Hawk.  P.  C,  8th  ed.,  c.  28,  §  28. 

8  See  C.  V.  Shindell,  9  Pa.  Dist.  R.  298;  S.  v.  Leary,  136  N.  C.  578, 
48  S.  E.  570. 

a  Rex  y.  Wilson,  8T.  R.  357 ;  Peelle  v.  S.,  101  Ind.  378,  68  N.  E.  682 ; 


152  CKimXAL  LAW.  [Sect.  170. 

And  this  possession  may  be  constructive  as  "^vell  as  actual ;  as 
where  the  owner  of  a  building,  which  he  does  not  personally 
occupy,  but  rents  to  tenants,  while  waiting  for  a  new  tenant, 
is  forcibly  kept  out  by  a  stranger  and  trespasser.^  Mere 
custody,  however,  is  not  enougli.  Therefore,  if  a  servant  with- 
holds possession  against  his  employer,  the  latter  is  not  guilty 
of  the  offence  in  asserting  his  right  to  the  possession  which  is 
already  his,  and  which  the  servant  has  not.^  So  if  the  owner 
has  gained  peaceable  possession  of  the  main  house,  this  carries 
with  it  the  possession  of  the  whole  ;  and  he  is  not  liable  under 
the  law  for  the  forcible  entry  of  a  shed  adjoining,  in  which  a 
tenant  had  intrenched  himself.^ 

One  cotenant  maybe  guilty  of  the  offence  as  against  another 
who  is  in  peaceable  possession  and  resists;*  and  so  may  a 
wife  as  against  her  husband.  ^ 

§  170.   Personal  Property.     Forcible  Trespass These  rules 

and  principles  are  strictly  applicable  only  to  the  forcible  entry 
and  detention  of  real  property ;  and  it  has  been  said  that  the 
forcible  detainer  of  personal  property  is  not  indictable.^  But  the 
seizure  of  personal  property  under  like  circumstances,  and  with 
similar  demonstrations,  may  be  indicted  as  a  forcible  trespass.'' 
And  there  seems  to  be  no  reason  why  its  forcible  detention 
may  not  be  also  indictable  by  an  analogous  change  in  the  de- 
scription of  the  offence.  It  is  not  less  a  public  injury.  It  has 
been  suggested  that  the  offence  can  only  be  committed  when 
the  party  trespassed  upon  is  present ;  ^  but  upon  principle  as 
well  as  upon  authority  the  reverse  seems  to  be  the  better  law.^ 

Beauohamp  v.  Morris,  4  Bibb  (Ky.),  312  ;  C.  v.  Bigelow,  3  Tick.  (Mass.) 
31;  S.  V.  Pearson,  2  N.  H.  550;  P.  v.  Leonard,  llJohns.  (N.  Y.)  504. 

1  P.  V.  Field,  52  Barb.  (N.  Y.)  198. 

2  S.  V.  Curtis,  4  Dev.  &  Bat.  (N.  C.)  222 ;  S.  v.  Leary,  136  N.  C.  578, 
48  S.  E.  570;  C.  v.  Keeper,  &c.,  1  Ashm.  (Pa.)  140. 

3  S.  V.  Pridgen,  8  Ired.  (X.  C.)  64. 

■*  Reg.  V.  Marrow,  Cas.  temp.  Hardw.  174. 

5  Rex  V.  Smyth,  1  M.  &  R.  155. 

6  S.  V.  Marsh,  64  X.  C.  378. 

'  S.  V.  Ray,  10  Ired.  (N.  C.)  39;  S.  v.  Widenhouse,  71  N.  C.  279. 

8  S.  V.  McAdden,  71  X.  C.  207. 

9  Ante,  §  168;  S.  v.  Thompson,  2  Overton  (Tenn.),  96. 


Sects.  171,  172.]    EAVESDROPPING.  —  LIBEL    AND    SLANDER.  153 
EAVESDROPPING. 

§  171.  Eavesdropping  is  a  kind  of  nuisance  which  was  pim- 
isliable  at  common  law,  and  was  defined  to  be  a  listening  under 
the  eaves  or  w^indows  of  a  house  for  the  purpose  of  hearing 
wdiat  may  be  said,  and  thereupon  to  form  slanderous  and  mis- 
chievous tales,  to  the  common  nuisance.^  The  offence  is  no 
doubt  one  at  common  law  in  this  country.  It  has,  indeed, 
been  expressly  so  held  ;  ^  and  it  would  seem  that  any  clandes- 
tine listening  to  what  may  be  said  in  a  meeting  of  the  grand 
jury,  for  instance,  required  by  law  to  be  secret,  or  perhaps 
any  meeting  which  may  lawfully  be  held  in  secret,  with  an 
intent  to  violate  that  secrecy,  to  the  public  injury  or  common 
nuisance,^  would  constitute  the  offence. 

LIBEL     AND     SLANDER. 

§  172.  Definition.  —  A  general  and  comprehensive  definition 
of  libel  is  that  of  Lord  Camden,  cited  by  Hamilton  in  the  ar- 
gument in  the  case  of  The  People  v.  Croswell,*  which  has  been 
repeatedly  approved  by  the  courts  of  New  York,  and  is  as 
follows  :  "  A  censorious  or  ridiculing  writing,  picture,  or  sign, 
made  witli  a  mischievous  or  malicious  intent,  toward  govern- 
ment, magistrates,  or  individuals."^ 

Within  the  scope  of  this  definition,  printed  and  published 
blasphemy  is  also  indictable  as  a  libel  ,^  and  so  is  printed 
obscenity  or  other  immoral  matter,  —  both  on  the  ground  that 
they  tend  to  deprave  or  corrupt  the  public  morals.'^  So  is  a 
publication  against  the  government,  tending  to  degrade  and 
vilify  it,  and  to  promote  discontent  and  insurrection ;  ^   or 

1  1  Hawk.  P.  C,  Table  of  Matters  to  Vol.  I.  Eavesdropper. 

2  S.  V.  Williams,  2  Overton  (Teun.),  108. 

3  C.  V.  Lovett,  6  Pa.  L.  J.  Rep.  226 ;  S.  v.  Pennington,  3  Head 
(Tenn.),  299. 

4  3  Johns.  Cas.  354. 

6  Cooper  V.  Greeley,  I  Denio  (N.  Y.),  347. 

«  C.  V.  Kneeland,  20  Pick.  (Mass.)  211 ;  P.  v.  Ruggles,  8  Johns.  (N.  Y.) 
290  ;  post,  §  194. 

'  C.  V.  Holmes,  17  Mass.  336;  C.  v.  Sharpless,  2  S.  &  R.  (Pa.)  91. 
8  Resp.  V.  Dennie,  4  Yeates  (Pa.),  267. 


154  CRIMIXAL   LAW.  [Sect.  172. 

calumniating  a  court  of  justice,  tending  to  weaken  the  ad- 
ministration of  justice.^  So  libels  upon  distinguished  official 
foreign  personages  have  repeatedly  been  held  in  England  pun- 
ishable at  the  common  law,  as  tending  to  disturb  friendly 
international  relations.^  It  remains  to  be  seen  whether  the 
State  courts  (the  United  States  courts  having  no  jurisdiction) 
will  in  this  country  follow  such  a  precedent. 

Bat  the  more  common  and  restricted  definition  of  libel  at 
common  law,  as  against  individuals,  is,  the  malicious  publica- 
tion of  any  writing,  sign,  picture,  effigy,  or  other  representation 
tending  to  defame  the  memory  of  one  who  is  dead,  or  the 
reputation  of  one  who  is  living,  and  to  expose  him  to  ridicule, 
hatred,  or  contempt.  It  is  punishable  as  a  misdemeanor,  on 
the  ground  that  such  a  publication  has  a  tendency  to  disturb 
the  public  peace.^  The  libel  is  equally  criminal  if  directed 
against  a  family,  though  it  is  not  against  any  individual 
member  of  it.* 

Words  that  would  not  be  actionable  as  slanderous  may 
nevertheless,  if  written  and  published,  be  indictable  as  libel- 
lous. Written  slander  is  necessarily  premeditated,  and  shows 
design.  It  is  more  permanent  in  its  effect,  and  calculated  to 
do  much  greater  injury,  and  "  contains  more  malice."  ^  Thus, 
it  is  libellous  to  write  and  publish  of  a  juror  that  he  has  mis- 
behaved, as  such,  by  staking  the  verdict  upon  a  chance  ;^  or 
of  a  stage-driver,  that  he  has  been  guilty  of  gross  misconduct 
and  insult  towards  his  passengers  ; "  or  that  a  bishop  has 
attempted  to  convert  others  to  his  religious  views  by  bribes  ;  ^ 


1  Rex  V.  Watson,  2  T.  R.  199. 

2  Rex  V.  D'Eon,  1  W.  Bl.  510  ;  Peltier's  Case,  28  Howell  St.  Tr.  529. 

3  1  Hawk.  P.  C,  8th  ed.,  5^2,  §  3;  S.  v.  Avery,  7  Conn.  266;  Giles  r. 
S.,  6  Ga.  276;  C.  w.  Clap,  4  Mass.  163,  C.  524  ;  P.  v.  Croswell,  3  Johns. 
Cas.  (N.  Y.)  337;  Cooper  v.  Greeley,  1  Denio.(N.  Y.),  347;  S.  v. 
Henderson,  1  Rich.   (S.  C.)  179. 

4  S.  V.  Brady,  44  Kan.  435,  24  P.  948. 
6  King  V.  Lake,  Hardr.  470. 

6  C.  V.  Wright,  1  Cush.  (Mass.)  46. 
'  Clement  v.  Chivis,  9  B.  &  C.  172. 
8  Archbishop  of  Tuam  v.  Robeson,  5  Bing.  17. 


Sect.  172.]  LIBEL  AND   SLANDER.  155 

or  that  a  man  is  a  "  rascal  "  ;  ^  or  that "  he  is  thought  no  more 
of  than  a  horse-thief"  ;2  or  to  charge  a  lawyer  with  divulging 
the  secrets  of  his  client  ;''*  or  to  say  of  a  memher  of  a  conven- 
tion to  frame  a  constitution,  that  he  contended  in  the  con- 
vention that  government  had  no  more  right  to  provide  for 
worship  of  the  Supreme  Being  than  of  the  devil  ;^  or  to  print 
of  a  man  that  he  did  not  dare  to  bring  an  action  in  a  certain 
county,  "because  he  was  known  there."  ^     And   it  has  even 
been  held  that  it  is  libellous  to  charge  a  man  with  a  gross 
want  of  feeling  or  discretion.*^     It  is  a  criminal  libel  to  write 
an  indecent  proposal  to  a  woman.^    If  a  portrait-painter  paints 
the  ears  of  an  ass  to  a  likeness  he  has  taken,  and  exposes  it 
to  tlie  public,  this  is  a  libcl.^     So  is  it  to  say  of  an  historian 
that  he  disregards  justice  and  propriety,  and  is  insensible  to 
his  obligations  as  an  historian.^     So  it  is  libellous  to  publish  a 
correct  account  of  judicial  proceedings,  if  accompanied  with 
comments  and  insinuations  tending  to  asperse  a  man's  char- 
acter;^*^ or  for  an  attorney  to  introduce  such  matter  into  his 
pleadings.i^     So  to  say  of  a  candidate  for  office  that  he  would 
betray  his  trust  from  motives  of  political  aggrandizement,  or 
to  accomplish  some  sinister  or  dishonest  purpose,  or  to  gratify 
his  private  malice,  is  a  lil)el  ;  but  it  is  not  a  libel  to  publish 
the  truth  concerning  his  character  and  qualifications  for  tlie 
office  he  aspires  to,  with  a  view  to  inform  the  electors. ^^ 

1  Williams  v.  Karnes,  4  Humph.  (Tenn.)  9. 

2  Nelson  v.  Musgrave,  10  Mo.  648. 

8  Riggs  !'.  Denniston,  3  Johns.  Cas.  (N.  Y.)  198. 
*  Stow  V.  Converse,  3  Conn.  325. 

5  Steele  v.  Southwick,  9  Johns.  (N.  Y.)  214. " 

6  Weaver  v.  Lloyd,  2  B.  &  C.  678;  S.  v.  Keenan,  111  la.  286,  82 
N.  W.  792 ;  S.  v.  Atkins,  42  Vt.  252.  See  also  Barthelemy  u.  P.,  2  Hill 
(N.  Y.),  248. 

7  Reg.  V.  Adams,  22  Q.  B.  D.  66. 

"  Mezzara's  Case,  2  City  Hall  Rec.  113. 

9  Cooper  V.  Stone,  24  Wend.  (N.  Y.)  434. 

10  Thomas  v.  Croswell,  7  Johns.  (N.  Y.)  264. 

"  C.  V.  Culver,  2  Pa.  Law  Jour.  359;  King  v.  McKissick,  126  Fed.  215. 

12  C.  V.  Clap,  4  Mass.  163,  C.  524;  S.  v.  Burnham,  9  N.  H.  34;  Powers 
V.  Dubois,  17  Wend.  (N,  Y.)  63;  C.  v.  Odell,  3  Pitts.  (Pa.)  449;  Wilson 
V.  Xoonan,  23  Wis.  105. 


156  CRIMINAL  LAW.  [Sect.  173. 

The  form  of  expression  in  charging  is  immaterial ,i  whether 
interrogative  or  direct,  or  bj  innuendo,  or  ironical,  or  allegori- 
cal, or  by  caricature,  or  by  any  other  device  whatever.  The 
question  always  is,  what  is  the  meaning  and  intent  of  the 
author,  and  how  will  it  be  understood  by  people  generally .^ 

§  173.  Malicious.  —  To  constitute  a  malicious  publication  it 
is  not  necessary  that  the  party  publishing  be  actuated  by  a 
feeling  of  personal  hatred  or  ill-will  towards  the  person  de- 
famed, or  even  that  it  be  done  in  the  pursuit  of  any  general 
evil  purpose  or  design,  as  in  the  case  of  malicious  mischief.^ 
It  is  sufficient  if  the  act  be  done  wilfully,  unlawfully,  and  in 
violation  of  the  just  rights  of  another,  according  to  what,  as 
we  have  seen,*  is  the  general  definition,  of  legal  malice.  And 
malice  is  presumed  as  matter  of  law  by  the  proof  of  publica- 
tion.^ Under  modern  statutes,  and,  in  some  cases,  constitu- 
tional provisions,  however,  the  whole  question  of  law  and  fact, 
i.  e.,  whether  the  matter  published  was  illegal  and  libellous, 
and  whether  it  was  malicious  or  not,  as  well  as  whether  it  was 
written  or  published  by  the  defendant,  is  left  to  the  jury,  they 
having  in  such  cases  greater  rights  than  in  other  criminal 
prosecutions.^ 

It  is  not  essential  that  the  charge  should  be  false  or  scandal- 
ous :  it  is  enough  if  it  be  malicious.  Indeed,  the  old  maxim  of 
the  common  law  was,  "  The  greater  the  truth,  the  greater  the 
libel,"  on  the  ground  that  thereby  the  danger  of  disturbance 
of  the  public  peace  was  greater.     The  truth,  therefore,  is  no 

^  Thus  a  wax-works  exhibit  may  be  libellous;  Monson  v.  Tussauds 
Ltd.  [1894]  1  Q.  B.  671,  K.  434. 

2  Rex  V.  Lambert,  2  Camp.  398;  Gathercole's  Case,  2  Lewin,  237; 
Hoare  v.  Silverlock,  12  Q.  B.  625,  C.  517;  Reg.  v.  Munslow,  [1895]  1 
Q.  B.  758,  K.  432;  S.  v.  Chace,  Walk.  (Miss.)  384. 

8  Seepos?,  §  322;  Kubrecht  v.  S.  (Tex.),  09  S.  W.  157. 

4  Ante,  §  33. 

5  Rex  V.  Harvey,  2  B.  &  C.  2.77,  C.  511;  Layton  r.  Harri.s,  3  Harr. 
(Del.)  406;  C.  v.  Snelling,  15  Pick.  (Mass.)  321;  Hoot  v.  King,  7  Cow. 
(N.  Y.)  613;  C.  v.  Sanderson,  3  Pa.  Law  Jour.  269;  Smith  v.  S.,  32 
Tex.  594. 

«  S.  V.  Goold,  02  Me.  509;  S.  v.  Lehre,  2  Brev.  (S.  C)  446 ;  2  Greenl. 
Ev.,  §  411. 


Sect.  174.]  LIBEL  AND  SLANDER.  157 

justification  by  the  common  law.  But  this  rule  has  in  some 
cases,  in  tliis  country,  been  so  far  modified  as  to  permit  the 
defendant  to  show,  if  he  can,  that  tlie  publication  under  tlie 
circumstances  was  justifiable  and  from  good  motives,  and 
then  sliow  its  truth,  in  order  to  negative  the  malice  and  intent 
to  defame.^  And  statutes  in  most  if  not  all  of  the  States  now 
admit  the  truth  in  defence  if  the  matter  be  published  for  a 
justifiable  end  and  with  good  motives,  and  give  the  jury  the 
right  to  determine  these  facts,  as  well  as  whether  the  publica- 
tion be  a  libel  or  not.^ 

§  174,  Publication.  —  Placing  a  libel  where  it  may  be  seen 
and  understood  by  one  or  more  persons  other  than  the 
maivcr,  is  a  publication,  for  the  purposes  of  the  criminal  law, 
without  reference  to  the  question  whether  in  fact  it  is  seen  or 
not,^  or  if  seen  whether  or  not  it  is  understood.^  It  has  been 
held  that  to  send  a  libellous  letter  to  the  person  libelled  is  a 
sufficient  publication.^  But  it  may  be  doubted,  in  the  absence 
of  statutory  provision  to  that  effect,  if  the  mere  delivery  of 
a  letter  containing  libellous  matter  to  the  libelled  party  is  a 
technical  publication,  though  doubtless  the  sending  of  such  a 
letter  is  an  indictable  offence,  as  tending  to  a  breach  of  the 
peace.^  But  there  can  be  no  doubt  that  a  sealed  letter  ad- 
dressed and  delivered  to  the  wife,  containing  aspersions  upon 
her  husband's  character,  is  a  publication.'^ 

1  Reg.  V.  Newman,  1  E.  &  B.  268,  5.58,  K.  438;  C.  v.  Clap,  4  Mass. 
163,  C.  524  ;  C  v.  Blanding,  3  Pick.  (Mass.)  304,  M.  954;  Barthelemy  v. 
P.,  2  Hill  (N.  Y.),  248.  See  also  Codd's  Case,  2  City  Hall  Ptec.  (X.  Y.) 
171 ;  S.  V.  Lehre,  2  Brev.  (S.  C.)  446;  C.  v.  Morris,  1  Va.  Cas.  176. 

2  Riley  v.  S.,  132  Ala.  13,  31  So.  731;  C.  i'.  Bonner,  9  Met.  (Mass.) 
410;  S.  V.  White,  7  Ire.  (N.  C.)  180;  S.  v.  Brock,  61  S.  C.  141,  39  S.  E. 
359.     Compare  S.  v.  Ilaskins,  109  la.  656,  80  N.  W.  1063. 

3  Ilex  r.  Burdett,  4  B.  &.  Aid.  95,  126  ;  Whitfield  v.  S.  E.  Ry.  Co.,  E. 
B.  &  E.  115 ;  Giles  v.  S.,  0  Ga.  276,  M.  952. 

4  Reg.  V.  Brooke,  7  Cox  C.  C.  251,  C.  526 ;  Ilaase  v.  S.,  53  X.  J.  L.  34,  20 
Atl.  751;  Mankins  v.  S.,  41. Tex.  Cr.  R.  662,  57  S.  W.  950. 

6  S.  V.  Avery,  7  Conn.  266. 

6  Mcintosh  V.  Matherly,  9  B.  Mon.  (Ky.)  119;  Sheffill  v.  Van  Deusen, 
13  Gray  (Mass  ),  304;  Lyle  v.  Clason,  1  Caiues  (N.  Y.),  581;  Fonville  v. 
M'Nease,  Dudley  (S.  C),  303  ;  Hodges  i-.  S.,  5  Humph.  (Tenn )  112. 

■^  Weuman  v.  xish,  13  C.  B.  836  ;  Schenck  v.  Schenck,  1  Spencer  (X.  J.), 
208. 


158  CRIMINAL  LAW.  [Sect.  175. 

§  175.  Privileged  Communications.  —  Certain  publications 
are  privileged,  that  is  to  say,  are  prima  facie  permissible  and 
lawful.  If  the  occasion  and  circumstances  under  which  they 
are  made  rebut  the  inference  of  malice  drawn  from  its  libellous 
character,  the  publications  are  privileged  and  lawful,  unless 
the  complainant  shows  that  the  defendant  was  actuated  by 
improper  motives.  But  no  one  can  intentionally  injure  under 
cover  of  a  privileged  communication;  and  if  he  avail  himself 
of  this  course  he  is  chargeable,  although  the  matter  published 
be  true  and  privileged.^  Thus,  a  fair  and  candid  criticism, 
though  severe,  of  a  literary  work,  exposing  its  demerits,  is 
privileged  ;  but  if  the  criticism  is  made  the  vehicle  of  personal 
calumny  against  the  author  aside  from  the  legitimate  purpose 
of  criticism,  it  becomes  libellous.^  A  communication  made  in 
good  faith  by  a  person  in  the  discharge  of  some  private  duty, 
legal  or  moral,  or  in  the  conduct  of  his  own  affairs,  and  in 
matters  wherein  he  is  interesttd,  is  privileged.^  Therefore, 
one  may  write  to  a  relation  warning  her  not  to  marry  a  certain 
person,  for  special  reasons  affecting  the  character  of  that  per- 
son ;  *  or  complain  to  a  superior  against  an  inferior  officer  in 
order  to  obtain  redress  ;  ^  or  give  the  character  of  a  servant 
in  answer  to  a  proper  inquiry  ;  ^  or  report  a  servant's  conduct 
to  his  master  ; ''  or  tell  the  truth  to  defend  his  own  character 
and  interests ;  ^  or  to  enforce  the  rules  of  a  society ;  ^  or  to 

1  Wright  V.  Woodgate,  2  C,  M.  &  R.  573 ;  Central  Ry.  Co.  v.  Sheftall, 
118  Ga.  8G.5,  45  S.  E.  687  ;  S.  v.  Keenan,  lllla.  280,  82  N.  W.  792  ;  C.  v. 
Blanding,  3  Pick.  (Mass.)  304,  M.  954;  Mc Arthur  v.  S.,  41  Tex.  Cr.  Rep. 
635,  57  8.  W.  847.  Oq  criticism  of  public  officers  see  23  Am.  Law  Re- 
view, 340. 

2  Carr  v.  Hood,  1  Camp.  355. 

^  Toogood  V.  Spyring,  4  Tyrw.  582  ;  Bodwell  v.  Osgood,  3  Pick.  (^lass.) 
379. 

*  Todd  V.  Hawkins,  8  C.  &  P.  88. 

6  Fairman  v.  Ives,  5  B.  &  Aid.  642. 

6  Child  V.  Affleck,  9  B.  &  C.  403. 

■^  Cockayne  v.  Ilodgkisson,  5  C.  &  P.  543. 

8  Coward  v.  Wellington,  7  C.  &  P.  531. 

8  Remington  v.  Congdon,  2  Pick.  (Mass.)  310;  Streety  v.  Wood,  15 
Barb.  (N.  Y.)  105. 


Sects.  176, 177.]    ENGROSSING.- FORESTALLING. -REGRATIXG.   159 

aid  in  the  exposure  or  detection  of  crime,  or  protect  the  public 
or  a  friend  from  being  swindled  or  otherwise  injured.^  These 
communications  and  the  like,  though  they  may  be  to  some 
extent  false,  are  all  privileged  if  made  without  malice,  and 
for  justifiable  ends.  Though  a  man  is  protected  in  making  a 
libellous  speech  in  a  legislative  assembly,  if  he  publish  it  he  is 
guilty  of  libel.2  And  fair  reports  of  judicial  and  other  proceed- 
ings, as  matter  of  news,  will  be  privileged,  while  if  unfair,  or 
interlarded  with  malicious  comment,  they  will  be  punishable 
as  libellous.^  If,  however,  the  matter  published  is  in  itself 
indecent,  blasphemous,  or  contrary  to  good  morals,  it  has  been 
held,  upon  very  careful  consideration,  to  be  indictable.* 

§  176.  Slander.  —  No  instance  has  been  found  of  an  indict- 
ment for  mere  verbal  slander  against  an  individual  in  this 
country,  nor  is  it  indictable  in  England,  unless  the  individual 
sustained  such  a  relation  to  the  public,  or  the  slander  was  of 
such  a  character,  as  to  involve  something  more  than  a  private 
injury,  as  where  one  was  held  indictable  for  calling  a  grand 
jury  as  a  body  a  set  of  perjured  rogues.^  In  many  States  the 
rule  has  been  changed  by  statute  so  as  to  make  certain  slan- 
ders criminal  offences. 

ENGROSSING.  —  FORESTALLING.  —  REGRATING. 

§  177.  These  were  severally  offences  at  the  common  law, 
and  describe  different  methods  of  speculation  and  artificial 
enhancement  or  depression  of  the  prices  of  merchandise,  by 
resort  to  false  news,  extraordinary  combinations,  and  other 
indirect  means  outside  of  the  regular  action  of  the  laws  of 
trade.  They  were  based  upon  early  English  statutes,  and 
notably  5  and  6  Edward  VI,  c.  14,  which  are  cited  by  Haw- 

1  Lay  V.  Lawson,  4  A.  cSc  E.  795  ;  C.  v.  Blanding,  3  Pick.  (Mass.)  004. 
^  Rex  V.  Abington,  1  Esp.  225,  K.  440 ;  Rex  v.  Creevey,  1  M.  &  S.  273. 

3  Lewis  V.  Walter,  4  B.  &  Aid.  605;  Curry  v.  Walter,  1  B.  &  P.  525  ; 
Clark  I'.  Blimey,  2  Pick.  (Mass.)  113;  Thomas  v.  Croswell,  7  Johns. 
(N.  Y.)  26L 

4  Rex  V.  Carlile,  3  B.  &  Aid.  161. 

5  Reg.  V.  Langley,  6  Mod.  125,  K.  437;  Rex  v.  Spiller,  2  Show.  207. 
See  also  2  Bish.  Cr.  Law,  7th  ed.,  §§  945  et  seq. 


160  CRIMINAL  LAW.  [Sects.  178,  179. 

kins,^  and  of  which  a  very  good  summary  may  be  found  in 
Bishop.2  These  statutes  are  now  repealed  in  Enghand,  and 
the  offences  abolished.  They  were  undoubtedly  a  part  of  the 
common  law  brought  to  this  country,  but  seem,  nevertheless, 
not  to  have  been  enforced,  —  perhaps  on  account  of  the  greater 
freedom  of  trade,  and  the  infrequency  of  the  occurrence  of  the 
evils  connected  with  them  in  a  new  country.  There  is  no 
reason  in  principle,  however,  why  they  should  not  be  applicable 
to  many  of  the  practices  of  the  stock  and  other  markets  of  the 
present  day.^ 

NUISANCE. 

§  178.  A  Nuisance  is  anything  that  works  hurt,  inconven- 
ience, or  damage.  If  to  the  public,  as  the  obstruction  of  a 
highway  or  the  pollution  of  the  atmosphere,  it  is  a  common 
nuisance,  and  punishable  by  indictment  at  common  law.  If 
the  hurt  is  only  to  a  private  person  or  interest,  the  remedy 
is  by  civil  proceedings.*  And  that  is  hurtful  which  substan- 
tially interferes  with  the  free  exercise  of  a  public  right,  which 
shocks  or  corrupts  the  public  morals,  or  injures  the  public 
health.  And  the  hurt  may  bo  wrought  as  well  by  acts  of 
omission  as  by  acts  of  commission  ;  as  by  failing  to  repair  a 
road,  or  to  entertain  a  stranger  at  an  inn,  both  being  regarded 
as  disorderly  acts.^ 

§  179.  Obstruction  and  Pollution.^  —  Certain  acts  are  said  to 
be  nuisances  2)er  se,  because  tliey  are  in  violation  of  the  public 
right.  Thus,  an  obstruction  in  a  street  is  a  nuisance,  because 
it  may  interfere  with  public  travel,  although  it  does  not  affir- 

1  1  Hawk.  P.  C,  8th  ed.,  646. 

2  1  Cr.  Law,  7th  ed.,  §§  518  et  seq. 

3  City  of  Louisville  v.  Roupe,  6  B.  Mon.  (Ky.)  591 ;  7  Dane  Abr.  39. 
For  the  learning  on  this  subject,  in  addition  to  the  authorities  ah'eady 
cited,  see  Res  v.  Waddington,  1  East,  113  ;  Rex  v.  "Webb,  14  East,  402  ; 
Pratt  V.  Hutchinson,  15  East,  511 ;  Rex  v.  Rusby,  Peake  Add.  Cas.  189 ; 
2  Chitty  Cr.  Law,  52. 

4  3  Bl.  Com.  216  ;  4  Bl.  Com.  166;  S.  v.  Schlottman,  52  Mo.  164. 

5  4  Bl.  Com.  167;  S.  v.  Madison,  63  Me.  546;  S.  v.  Morris  Canal  Co., 
2  Zabr.  (N.  J.)  537  ;  Hill  i^.  S.,  4  Sneed  (Teun.),  443. 

6  Ante,  §  14. 


Sect.  179.]  NUISAXCE.  161 

matively  appear  that  it  certainly  has  interfered  with  it,  or  even 
of  it  appears  that  there  has  been  no  travel  to  obstruct  since 
the  obstruction  was  erected.^  So  of  the  obstruction  of  navi- 
g'able  waters,  although  the  inconvenience  may  be  inappreciable.^ 
So  doing  any  act  in  the  street  or  in  a  building  adjoining  the 
street  (as  giving  an  exhibition  of  pictures  in  a  window,^  or  other 
exhibition  near  the  street,^  or  holding  an  auction  sale  on  the 
street,^  or  erecting  houses  on  a  public  square,^  or  running  an 
engine  in  the  streets,"  or  digging  therein  a  hole,^  or  discharging 
water  so  as  to  cover  the  sidewalk  with  ice,^  or  delivering  out 
merchandise  or  other  material,  as  brewer's  grain  from  a 
brewery),  in  such  a  manner  as  to  cause  the  street  to  be  con- 
stantly obstructed  by  men  or  vehicles,  will  amount  to  a 
nuisance.^^  A  mere  transitory  obstruction,  however,  resulting 
from  the  ordinary  and  proper  use  of  a  highway,  as  in  the  un- 
loading of  goods  from  a  wagon,  or  the  dumping  of  coal  into  a 
street  to  be  removed  to  the  house,  if  the  obstruction  be  not 
permitted  to  remain  more  than  a  reasonable  time,  does  not 
amount  to  a  nuisance.^^  Trees  in  the  street  are  not  necessarily 
a  nuisance.^2 

The  pollution  of  a  stream  of  water,  by  discharging  into  it 
offensive  and  unwholesome  matter,  if  the  water  be  used  by  the 

1  Knox  V.  Xew  York  City,  55  Barb.  (X.  Y.)  404,  C.  54-3. 

2  S.  Merrit,  .35  Conn.  314  ;  Pascagoula  Boom  Co.  %\  Dickson,  77  Miss. 
587,  28  So.  724  ;  P.  v.  Vanderbilt,  28  N.  Y.  396  ;  Woodman  v.  Kilbouru 
Mfg.  Co.,  1  Abb.  (U.  S.)  158,  Fed.  Cas.  No.  17,978.  Compare  Reg.  v. 
Stephens,  L.  R.  1  Q.  B.  702. 

3  Rex  V.  Carlile,  6  C.  &  P.  636. 

4  Hall's  Case,  1  Vent.  169  ;  Walker  v.  Brewster,  L.  R.  5  Eq.  25. 

5  C.  V.  Milliman,  13  S.  &  R.  (Pa.)  403. 

6  C.  V.  Rush,  14  Pa.  186. 

7  C.  V.  Allen,  148  Pa.  358,  23  Atl.  1115. 

8  Robinson  v.  Mills,  25  Mont.  391,  65  P.  114. 

9  Leahan  r.  Cochran,  178  Alass.  .566,  60  X.  E.  382. 

10  Rex  V.  Russell,  6  East,  427;  P.  v.  Cunningham,  1  Denio  (N.  Y.),  524. 
See  also  Attorney  General  v.  Williams,  140  Mass.  329,  2  N.  E.  80  ; 
Beecher  v.  P.,  38  Mich.  289 ;  Cohen  v.  Xew  York,  113  N.  Y.  532,  21  N. 
E.  700;  Robinson  v.  B.  &.  O.  R.  R.,  129  Fed.  753. 

11  Rex  V.  Carlile,  6  C.  &  P.  636 ;  P.  v.  Cunningham,  ante. 

12  Burget  V.  Greenfield,  120  la.  432,  94  X.  W.  933. 

11 


162  CRIMINAL   LAW.  [Sect.  180. 

public,  is  also  indictable  as  a  nuisance/ and  all  who  contribute 
to  such  pollution  are  guilty .^  So  is  the  damming  up  of  a 
stream,  so  as  to  make  the  water  stagnant  and  pestiferous.^ 
In  New  Hampshire,  the  prevention  of  the  passage  of  fish  by  a 
dam  constructed  across  a  non-navigable  stream  is  indictable 
at  common  law.* 

§  180.  Obnoxious  Business.  —  Other  acts  may  or  may  not  be 
nuisances,  according  to  the  attendant  circumstances.  A  law- 
ful business  conducted  in  a  proper  manner,  in  a  proper  place, 
and  at  a  proper  time,  without  inconvenience  to  the  public,  may 
be  perfectly  innocent ;  while  the  same  business,  if  carried  on 
in  an  improper  manner,  or  at  an  improper  place,  or  at  an  im- 
proper time,  to  the  annoyance  or  injury  of  the  public,  will 
become  abatable  as  a  nuisance.  Manufacturing  gunpowder, 
refining  oils,  tanning  hides,  and  making  bricks  are  examples 
of  this  class.^  So  tbo  setting  of  spring-guns  ;6  the  mainten- 
ance of  a  pesthouse,'  slaughter-house,^  dump,^  or  bowling 
alley .^"  No  act  authorized  by  the  legislature,  however,  can 
be  punished  as  a  nuisance,  even  though  at  common  law  a  nui- 
sance jyer  seP-  But  this  will  not  protect  an  act  done  in  a 
manner  unauthorized  by  the  license,^^  or  in  excess  thereof,  as 
storing  dynamite  beyond  the  amount  allowed,^'^  or  prior  to  the 
giving  of  the  license.^* 

1  S.  V.  Tavlor,  29  Tnd.  517 ;  S.  v.  Buckman,  8  N.  H.  203. 

2  S.  V.  Smith,  82  la.  423,  48  K  W.  727. 
8  S.  V.  Rankin,  3  S.  C.  438. 

4  S.  V.  Franklin  Falls  Co.,  49  N.  H.  240. 

5  Anon.,  12  Mod.  342;  Powder  Co.  v.  Tearney,  131  111.  322,  23  N.  E. 
389;  S.  V.  Hart,  34  Me.  36  ;  Attorney  General  v.  Steward,  20  N.  J.  Eq. 
415;  Wier's  Appeal,  74  Pa.  St.  230. 

«  S.  V.  Moore,  31  Conn.  479. 

■^  Youngstown  Trustees  v.  Yoiuigstown,  25  O.  Cir.  Ct.  R.  518. 

8  Wilcox  V.  Henry,  35  Wash.  591,  77  P.  1055. 

9  Percivalt'.  Tousling,  120  la.  451,  94  N.  \\.  913. 

10  Harrison  v.  P.,  101  111.  App.  224. 

11  C.  V.  Boston,  97  Mass.  555;  P.  v.  New  York  Gas  Light  Co.,  64  Barb. 
(N.  Y.)  55;  Danville,  &c.,  R.  R.  v.  C,  73  Pa.  29. 

12  Rand  Lumber  Co.  v.  Burlington,  122  la.  203,  97  N.  W.  1096.  Cora- 
pare  S.  V.  Hartford  St.  Ry.  Co.,  76  Conn.  174,  56  Atl.  506. 

13  Packer  v.  Shaler,  89  App.  Div.  (X.  Y.)  300,  85  N.  Y.  S.  825. 
1*  C.  V.  Packard,  185  Mass.  64,  69  N.  E.  1067. 


Sects.  181, 182.]  NUISANCE.  163 

In  the  case  of  offensive  odors,  they  become  a  nuisance  if 
they  make  the  enjoyment  of  a  right, —  as  of  a  passage  along 
the  highway,  or  of  life  elsewhere,  —  uncomfortable,  though  the 
odors  may  not  be  unwholesome.^  So  a  coal-shed  in  a  thickly 
settled  locality,  which  disturbs  the  neighborhood  by  reason 
of  noise  and  dust,  is  a  nuisance.  ^ 

§  181.  Immoral  Nuisances.  —  Any  business  obnoxious  to  the 
public  morals  is  a  criminal  nuisance.  Such  is  the  business  of 
carrying  on  "bookmaking"  in  a  booth  on  a  race-course,-^  or 
the  singing  of  ribald  songs  on  the  public  streets.*  So  profan- 
ity, or  profane  cursing  and  swearing,  is  a  special  form  of  nui- 
sance, indictable  at  common  law.^  But  it  has  been  held  that  a 
sinde  instance  of  swearing  will  not  constitute  the  offence  ; 
there  must  be  such  repetition  as  to  make  the  offence  a  common 
nuisance.*^  Eavesdroppers,  common  scolds,  railers  and  brawl- 
ers, common  drunkards,  common  barrators,  and  the  like, 
persons  guilty  of  open  obscenity  of  conduct  or  language,  of 
Ijlasphemy,  or  profanity,  or  who  keep  disorderly  houses,  as  for 
gaming  or  prostitution,  or  make  disorderly  and  immoral  ex- 
hibitions, or  promote  lotteries,  or  carry  about  persons  affected 
with  contagious  disease,  or  make  unseemly  noises  at  improper 
times  and  places,  may  all  be  included  under  the  general  cate- 
gory of  common  nuisances,  if  the  several  acts  work  injury  to 
the  public,  punishable  at  common  law  unless  otherwise  pro- 
vided for  by  statute." 

§  182.  Prescription.  Public  Benefit.  —  The  lapse  of  time  does 
not  give  the  right  to  maintain  a  nuisance.^     No  one  can  pre- 

1  Rex  V.  White,  2  C.  &  P.  485,  n.  ;  Seacord  v.  P.,  121  111.  623, 13  N.  E. 
194;  C.  V.  Perry,  139  Mass.  198,  29  N.  E.  656,  C.  552  ;  S.  v.  Payson,  37 
Me.  361 ;  S.  v.  Purse,  4  ]\IcCord  (S.  C),  472. 

2  Wylie  V.  Elwood,  134  111.  281,  25  N.  E.  570. 
8  McClean  v.  S.,  49  N.  J.  L.  471,  9  Atl.  681. 

4  S.  V.  Toole,  106  N.  C.  736,  11  S.  E.  168. 

5  8.  V.  Powell,  70  N.  C.  67. 

6  S.  V.  Jones.  9  Ired.  (N.  C.)  38;  S.  v.  Graham.  3  Sneed  (Tenn.),  134. 
•  4  Bl.  Com.  167  et  seq.,  and  notes,  Sharwood's  ed. ;  Rex  v.  Moore, 

3  B.   &  Ad.  184;  Barker  v.  C,  19    Pa.  412.     See  on  all   these  kinds  of 
nuisance,  1  Bish.  New  Cr.  L.,  §§  1082-1151. 

8  Reg.  V.  Reed,  12  Cox  C.  C.  1 ;  Kelly  v.  Pittsburgh  R.  R.,  28  Ind.  App. 


164  CRIMINAL  LAW.  [Sect.  182. 

scribe  against  the  State,  against  which  the  statute  of  limita- 
tions does  not  run,  and  which  is  not  chargeable  with  laches. 
Nor  is  it  any  excuse  that  the  public  benefit  is  equal  to  the 
public  inconvenience;^  nor  that  similar  nuisances  have  been 
tolerated.2 

It  has  indeed  been  said  by  high  authority  that,  where  a 
useful  trade  or  business  has  been  established,  away  from  popu- 
lation, it  may  be  continued,  notwithstanding  the  approach  of 
population.^  So,  too,  it  has  been  iield  that  a  business  estab- 
lished in  a  neighborhood  where  offensive  trades  already  exist, 
which,  though  individually  offensive,  does  not  materially  add 
to  the  already  existing  nuisance,  may  be  permitted.*  And  in 
one  case,  at  least,  in  this  country  the  doctrine  of  the  first  case 
seems  to  have  been  accepted.^  But  it  is  questionable  whether 
this  is  now  the  law  in  England.^  And  the  very  decided  weight 
of  authority  in  this  country  is  to  the  contrary  on  both  points.'^ 

But  an  important  qualification  is  to  be  noted.  It  is  true 
that  a  business  which  is  a  nuisance  cannot  be  defended  by 
reason  of  lapse  of  time,  or  of  the  character  of  the  surround- 
ings ;  but  in  deciding  whether  in  fact  the  business  constitutes 
a  nuisance,  these  facts  are  to  be  considered,  along  with  the 
other  circumstances  of  the  case.     What  would  be  a  nuisance 

457,  63  N.  E.  233 ;  Leahau  v.  Cochran,  178  Mass.  566,  60  N.  E.  382,  53 
L.  R.  A.  891,  with  note  and  collection  of  cases  on  the  point  ;  Isham  v. 
Broderick,  89  Minn.  397,  95  N.  W.  224.  See  also  Mercer  County  r.  City 
of  Harrodsburg,  24  Ky.  L.  R.  1651,  71  S.  W.  928. 

1  Seacord  v.  P.,  121  111.  623,  13  N.  E.  194;  S.  v.  Raster,  35  la.  221, 
C.  549 ;  Hartw,  Albany,  9  Wend.  (N.  Y.)  571 ;  Rasp.  v.  Caldwell,  1  Dall. 
(Pa.)  150. 

2  Pittsburgh  Ry.  Co.  v.  Crothersville,  159  Ind.  330,  64  N.  E.  914;  C.  v. 
Deerfield,  6  All.  (Mass.)  449;  C.  r.  Perry,  139  Mass.  198,  29  N.  E.  656; 
P.  V.  Mallory,  4  T.  &  C.  (N.  Y.)  567. 

3  Abbott,  C.  J.,  Rex  v.  Cross,  2  C.  &  P.  483. 
«  Rex  V.  Watts,  M.  &  M.  281. 

5  Ellis  y.  S.,  7  Blackf.  (Ind.)  534. 

«  Reg.  V.  Fairie,  8  E.  &  B.  486. 

^  Ashbrook  v.  C,  1  Bush  (Ky.),  139;  C.  v.  Upton,  6  Gray  (Mass.),  473  ; 
P.  v.  Detroit  White  Lead  Works,  82  ]\Iich.  471,  46  N,  W."^735  ;  Taylor  v. 
P.,  6  Parker  C.  C.  (N.  Y.)  347  ;  P.  v.  Cunningham,  1  Denio  (N.1^),  524; 
C.  y.  Van  Sickle,  1  Bright  (Pa.),  69  ;  Douglass  v.  S.,  4  Wis.  387. 


Sect.  183.]  ATTEMPT.  165 

in  a  country  village,  or  in  the  residential  quarter  of  a  city, 
might  not  be  a  nuisance  if  established  in  a  locality  devoted  to 
manufacturing.  Therefore  a  refinery  or  a  slaughter-house  is 
not  a  nuisance,  if  established  in  a  locality  which  is  devoted  to 
such  business,  and  draws  its  prosperity  from  it.^ 

ATTEMPT. - 

§  183.  Attempt,  Preparation,  and  Intent.  —  An  attempt  to 
commit  a  crime  is  distinguishable  from  preparation  to  com- 
mit it,  and  also  from  the  intent  to  commit.  The  purchase 
of  matches,  for  instance,  with  the  intent  to  set  fire  to  a  house 
at  some  convenient  opportunity,  is  not  an  attempt  to  set  the 
fire.  It  is  mere  preparation,  and,  though  the  intent  exists, 
there  is  no  step  taken  in  the  perpetration  of  any  crime  to 
which  the  intent  can  attach.  The  law  does  not  punish  the 
mere  entertainment  of  a  criminal  intent-  To  bring  the  law 
into  action  it  is  necessary  that  some  act  should  be  done  in 
pursuance  of  the  intent,  immediately  and  directly  tending  to 
the  commission  of  the  crime,  —  an  act  which,  should  the 
crime  be  perpetrated,  would  constitute  part  and  parcel  of  the 
transaction,  but  which  does  not  reach  to  the  accomplish- 
ment of  the  original  intent,  because  it  is  prevented,  or  volun- 
tarily abandoned.'^  What  does  immediately  and  directly  so 
tend  is  to  be  determined  by  the  circumstances  of  each  par- 
ticular case  ;  and,  as  might  be  expected,  courts  which  agree 
upon  the  ])rinciple  are  not  entirely  consistent  in  its  appli- 
cation. The  dividing  line  between  acts  preparatory  to  and 
in  execution  of  a  crime  is  very  shadowy.'*  If  the  act  prepara- 
tory be  unequivocal  and  explicable  only  upon  the  theory  that 

1  Ballentine  v.  AVebb,  84  Mich.  38,  i7  N.  W.  48.3;  C.  v.  Miller,  1.39 
Pa.  77,  21  Atl.  138,  C.  .555. 

2  On  this  general  subject  see  an  article  by  Professor  J.  H.  Beale,  Jr. 
in  16  Harvard  Law  Rev.  491. 

3  Steph.  Dig.  Crim.  Law,  art.  49;  Lewis  ('.  S.,  35  Ala.  380;  Field,  C. 
J.,  in  P.  V.  Murray,  14  Cal.  159  ;  Kelly  v.  C,  1  Grant's  Cas.  (Pa.)  484, 
M.  342. 

*  For  a  discussion  of  the  line  between  pi'eparation  and  attempt  see  : 
P.  V.  Murray,  ante;  C.  v.  Kennedy,  170  Mass.  18,  48  N.  E.  770;  C.  v. 
Peaslee,  177  Mass.  267,  59  N.  E.  55,  M.  348 ;  U.  S.  v.  Stephens,  8  Sawy. 
C.  C.  116. 


166  CRIMINAL  LAW.  [Sect.  183. 

it  was  intended  as  a  step  in  the  commission  of  a  crime,  as  in 
the  procuring  dies  for  making  counterfeit  coins,  it  seems  to 
be  lield  to  be  an  attempt;  although,  if  explicable  as  a  lawful 
act,  it  might  be  otherwise.^  So  taking  a  false  oath  in  order 
to  procure  a  marriage  license  is  an  attempt  to  marry  without 
a  license.^  So  taking  an  impression  of  a  key  to  a  storehouse 
and  preparing  a  false  key,  with  intent  to  enter  and  steal,  has 
been  held  to  be  an  attempt  to  steal.^  So  setting  aside  certain 
goods  with  the  purpose  of  later  carrying  them  away.*  So 
making  false  statements  is  an  attempt  to  obtain  money  under 
false  pretences,  the  deception  being  discovered  before  tiie 
money  is  obtained.^  On  the  other  hand,  putting  the  finger  on 
the  trigger  of  a  pistol  at  half-cock,  or  otherwise  not  in  con- 
dition to  be  discharged,  has  been  held  not  to  constitute  an 
attempt  to  shoot.^  Sending  an  order  for  the  purchase  of 
liquor  in  San  Francisco,  to  be  shipped  to  Alaska,  is  not  an 
attempt  to  introduce  liquor  into  Alaska."  And  the  delivery 
of  poison  by  A  to  B,  in  order  that  tlie  latter  might  deliver 
it  to  C,  to  be  taken  by  the  latter,  is  not  an  "  attempt  to 
poison  "  by  A.^  Nor  is  the  actual  administration  of  a  sub- 
stance supposed  to  be  poisonous,  but  not  so  in  fact.^  But 
Regina  v.  Williams  was  a  case  under  a  statute;  and  it  seemed 
to  be  agreed  by  all  the  judges,  that,  while  they  must  confine 
statutory  attempts  strictly  to  the  terms  of  the  statute,  a  less 
intimate  connection  of  the  act  done  wdtli  the  crime  intended 
is  requisite  in  common  law  attempts.^'^ 

1  Rex.  V.  Fuller,  R.  &  R.  C.  C.  40S;  Reg.  v.  Roberts,  7  Cox  C.  C.  39. 

2  Reg.  i\  Chapman,  3  Cox  C.  C.  467 ;  contra,  P.  v.  Murray,  14  Cal.  159. 
See  P.  V.  Stites,  7.5  Cal.  570,  17  P.  693. 

3  Griffin  y.  S.,  26  Ga.  493. 

*  Reg.  V.  Cheeseman,  L.  &  C.  140,  K.  85. 

^  Reg.  V.  Eagleton,  6  Cox  C.  C.  559;  Reg.  v.  Hensler,  11  Cox  C.  C. 
570. 

6  Rex  V.  Harris,  5  C.  &  P.  159.  See  Burton  v.  S.,  109  Ga.  134,  34 
S.  E.  286. 

■'  U.  S.  V.  Stephens,  8  Sawy.  C.  C.  116. 

8  Reg.  V.  Williams,  1  Den.  C.  C.  39. 

*  S.  V.  Clarissa,  11  Ala.  57. 

1°  Reg.  V.  Roberts,  7  Cox  C.  C.  39.     See  the  cases  illustrative  very 


Sect.  184.]  ATTEMPT.  167 

§  184.  Impossibility  of  Execution.  —  It  is  not  enough  that 
the  act  done  must  have  been  more  than  a  mere  preparation 
for  the  crune,  an  actual  step  toward  the  commission  of  it ;  in 
addition  thereto  the  means  must  be,  to  the  apprehension  of  a 
reasonable  man,  calculated  to  effect  the  purpose.  Using 
witchcraft  for  the  purpose  of  killing  an  enemy  is  not  an 
attempt  to  kill.  "  It  is  true,  the  sin  and  wickedness  may  be 
as  great  as  an  attempt  or  conspiracy  by  competent  means  ; 
but  human  laws  are  made,  not  to  punish  sin,  but  to  prevent 
crime  and  mischief."^  Hence,  striking  at  a  man  with  a 
small  stick  is  not  sufficient  to  support  an  indictment  for  an 
attempt  to  kill.^  On  the  other  hand,  it  is  enough,  the  other 
elements  being  present,  that  the  act  was  apparently  adapted 
to  bring  about  the  result  sought,  though  not  in  reality  suffi- 
cient.'^ In  England,  it  was  once  held  that,  to  constitute  an 
attempt,  the  act  committed  must  be  of  such  a  nature  and 
under  such  circumstances  that  the  actor  has  the  power  to 
carry  his  intention  into  execution,  and  that  thrusting  the 
hand  into  the  pocket  of  another  with  intent  to  steal  a  pocket- 
book,  or  some  other  article  of  property,  is  no  attempt,  if 
there  be  at  the  time  nothing  in  the  pocket  to  steal.'*  But 
this  doctrine  has  been  abandoned  even  in  England ;  ^  and  the 
contrary  is  generally,  if  not  universally,  held  in  this  country.^ 

A  somewhat  different  aspect  of  the  principle  that  though 
the  execution  of  the  intended  act  may  not  in  fact  be  possible, 

fully  collected  and  stated  in  1  B.  &  H.  Lead.  Cr.  Cas.,  note  to  Rex  v. 
Wheatley,  pp.  6-10;  Reg.  v.  Cheesenian,  9  Cox  C.  C.  100,  K.  So; 
P.  V.  Murray,  14  Cal.  159. 

1  Pollock,  C.  B.,  in  Attorney  General  v.  Sillem,  2  H.  &  C.  431,  525. 

2  Kunkle  v.  S.,  32  Ind.  220  ;  see  also  Lott  v.  S.,  83  Miss.  609,  36  So.  11. 

3  C.  V.  Shaw,  134  Mass.  221;  P.  v.  Gardener,  144  N.  Y.  119,  38  N.  E. 
1003. 

*  Reg.  V.  Collins,  10  Jar.  N.  S.  686. 

5  Reg.  V.  Brown,  38  W.  R.  95,  24  Q.  B.  D.  357 ;  Reg.  v.  Ring,  61 
L.  J.  R.  (M.  C.)  116,  K.  88. 

6  Harvick  v.  S.,  49  Ark.  514,  6  S.  W.  19  ;  S.  v.  Wilson,  30  Conn.  .500; 
Hamilton  v.  S.,  36  Ind.  280;  C.  v.  McDonald,  5  Cush.  (Mass.)  365;  P.  v. 
Jones,  46  Mich.  441,  9  N.  W.  486  ;  P.  v.  Moran,  123  X.  Y.  254,  25  N.  E. 
412;  S.  V.  Beal,  37  O.  St.  108  ;  Clark  v.  S.,  86  Tenn.  511,  8  S.  W.  145. 


168  CRIMINAL  LAW.  [Sect.  184a. 

the  means  adopted  must  be  in  themselves  calculated  to  bring 
about  the  result  finally  desired,  else  the  public  tranquillity  is 
not  disturbed,  and  the  act  done  not  criminal,  is  seen  when  we 
consider  the  transaction,  not  from  the  point  of  view  of  the 
implements  used,  but  of  the  physical  end  sought.  Thus  there 
must  be  some  real  object  at  which  the  act  is  aimed.  Striking 
at  a  corpse,  or  shooting  at  a  bush  thinking  it  a  man,  is  for 
this  reason  not  an  attempt  to  kill.  And  where  a  soldier,  see- 
ing a  body  of  troops  in  the  distance  and  thinking  them  hostile, 
rode  toward  tliem  intending  to  desert,  this  was  held  not  an 
attempt  to  desert  when  the  troops  in  fact  were  friendly,  not 
hostile.^ 

So  it  is  generally  held  that  a  boy  under  fourteen  cannot  be 
indicted  for  an  assault  with  intent  to  commit  rape,  or  for  an 
attempt  to  commit  rape.^  This  is  based  on  the  view  that  as 
the  crime  of  rape  is  committed  only  when  a  woman  is  forced 
by  a  person  over  fourteen,  a  boy  under  that  age,  had  he  done 
all  that  he  intended  to  do,  would  not  have  been  guilty  of  rape  ; 
consequently,  any  steps  falling  short  of  success  cannot  be  an 
attempt  to  commit  what,  if  completed,  would  not  have  been, 
legally,  rape.  In  other  States  it  has  been  held  that  the  fact 
that  a  boy  under  fourteen  is  presumed,  either  conclusively  or 
prima  facie  to  be  incapable  of  committing  rape  has  no  bearing 
on  the  question  of  whether  he  may  not  in  fact  attempt,  or 
make  an  assault  with  the  intent,  so  to  do ;  and  that,  if  the 
other  elements  of  an  attempt  are  present,  he  should  be  con- 
victed.^ Similarly,  impotency  is  no  defence  to  an  indictment 
for  an  assault  with  intent  to  commit  rape.* 

§  184  a.  Desisting  before  Completed  Crime  cannot,  if  the 
other  elements  are  present,  make  the  act  done  any  the  less  an 

1  Resp.  V.  Malin,  1  Dall.  (Pa.)  33.  See  also  S.  v.  Lawrence,  178  Mo. 
350,  77  S.  W.  497;  Marley  v.  S.,  58  N.  J.  L.  207,  33  Atl.  208,  M.  352; 
S.  r.  Cooper,  2  Zabr.  (N.  J.)  52;  S.  v.  Brooks,  76  N.  C.  1. 

2  Reg.  V.  Williams,  [1893]  1  Q.  B.  320;  McKinney  v.  S.,  29  Fla.  565, 
10  So.  732;  P.  V.  Randolph,  2  Park.  (N.  Y.)  213;  Foster  v.  C,  96  Va. 
306,  31  S.  E.  503. 

8  Davidson  v.  C,  20  Ky.  L.  R.  540,  47  S.  W.  213;  C.  v.  Green,  2 
Pick   (Mass.)  .380,  C.  117.     See  Reg.  v.  Brown,  24  Q.  B.  D.  357. 
*  1  err.  v.  Keyes,  5  Dak.  244,  38  N.  W.  440. 


Sect.  185.]  ATTEMPT.  169 

attempt.!  Nor  can  the  consent  of  the  person  attacked,  as  for 
example  in  rape,  although  sufficient  to  prevent  the  completed 
act  from  being  rape,  operate  to  take  away  the  criminality  of 
the  transaction  prior  to  the  giving  of  the  consent.^  Similarly, 
the  successful  completion  of  the  crime  in  a  second  State  will 
not  prevent  whatever  part  of  the  transaction  took  place  in  the 
first  State  from  being  punishable  there.^ 

§  185.  Solicitation.  —  To  incite,  solicit,  advise,  or  agree 
with  another  to  commit  a  crime  is  in  itself  a  crime  in  the  na- 
ture of  an  attempt,  although  the  contemplated  crime  be  not 
committed.'^  But  it  has  recently  been  said  that  the  doctrine  of 
these  cases,  if  sound  law,  cannot  be  extended  to  the  solicita- 
tion to  commit  a  misdemeanor,  a  mere  solicitation  not  amount- 
ing to  an  attempt.^  It  would  seem,  however,  that  if  solicitation 
is  an  attempt  in  the  case  of  felony,  it  is  in  that  of  misde- 
meanor. It  is  certainly  something  more  than  intent,  and  the 
doctrine  of  the  last  case  can  better  be  supported  upon  the  fail- 
ure of  the  indictment  sufficiently  to  set  forth  the  mode  of  solici- 
tation, than  upon  the  point  that  mere  solicitation  is  not  an 
act.^  An  offer  to  give  a  bribe,  and  an  offer  to  accept  a  bribe, 
have  been  held  to  be  indictable  offences ; '  and  so  have  a  chal- 
lenge to  fight  a  duel,^  and  inviting  another  to  send  a  challenge. ^ 

1  Lewis  V.  S.,  35  Ala.  380;  P.  v.  Stewart,  97  Cal.  238,  32  P.  8;  Glover 
V.  C,  86  Ya.  382,  10  S.  E.  420. 

2  S.  V.  Bagau,  41  Minn.  285,  43  N.  W.  5;  S.  v.  Hartigan,  32  Vt.  607. 

3  Regent  v.  P.,  96  111.  App.  189. 

4  Ptex  V.  Higgins,  2  East,  5,  K.  83,  M.  337;  Reg.  v.  Quail,  4  F.  &  F. 
1076,  C.  139;  S.  v.  Avery,  7  Conn.  266;  S.  v.  Sales,  2  Nev.  268;  C.  v. 
Randolph,  146  Pa.  83,  23  Atl.  388;  3  Greenl.  Ev.  (13th  ed.),  §  2,  and 
note;  Steph.  Dig.  Cr.  Law,  arts.  47,  48;  1  Bish.  New  Cr.  Law,  §  767. 

There  are  certain  technical  differences  between  a  solicitation  and  an 
attempt  in  their  relation  to  the  substantive  crime.  The  solicitor  does  not 
seek  himself  to  perform  the  criminal  act,  but  to  get  another  to  do  it.  If 
the  act  is  completed  he  will  be  liable,  not  as  principal  but  as  accessory  be- 
fore the  fact.  See  Cox  v.  P  .  82  111.  191 ;  Stabler  t;.  C,  95  Pa.  318  ;  S.  v. 
Butler,  8  Wash.  194,  35  P.  1093. 

5  Smith  V.  C,  54  Pa.  208. 

6  See  C.  V.  Hutchinson,  6  Pa.  Sup.  Ct.  405,  M.  338. 

'  Walsh  V.  P.,  65  111.  58;  U.  S.  i'.  Worrall,  2  Dall.  384. 
8  S.  V.  Farrier,  1  Hawks  (N.  C),  487;  C.  v.  Whitehead,  2  Law  Re- 
porter, 148. 

3  Rex  V.  Philipps,  6  East,  464. 


170  CRIMINAL  LAW.  [Sect.  186. 

Although  suicide  is  not  punishable,  yet  it  is  criminal,^ 
and  an  unsuccessful  effort  at  suicide  is  punisliable  as  an  at- 
tempt ;  -  though  in  Massachusetts  the  phraseology  of  the  stat- 
ute, which  maizes  attempts  punishable  by  one-half  the  penalty 
provided  for  the  completed  crime,  has  practically  made  the 
offence  of  an  attempt  to  commit  suicide  dispunishable.^  In 
some  of  the  States  suicide  is  not  regarded  as  a  crime,  but  by 
statute  it  is  made  a  felony  to  persuade  another  to  commit 
suicide.* 

CONSPIRACY, 

§  186.  We  see,  therefore,  that  it  is  a  crime  for  one  person  to 
sdhcit  another  to  commit  a  crime.  It  is  one  step  in  a  series 
of  acts,  which,  if  continued,  will  result  in  an  overt  act;  and 
although  it  may  be  ineffectual,  it  is  part  and  parcel  of  what, 
if  consummated,  becomes  a  complete  and  effectual  crime.  It 
therefore  partakes  of  its  criminality,  and  belongs  strictly,  per- 
haps, to  that  class  of  crimes  which  is  included  under  "at- 
tempts." Mutual  solicitation  by  two  or  more  persons  is,  of 
course,  upon  the  same  grounds,  equally  criminal ;  and  when 
this  mutual  solicitation  has  proceeded  to  an  agreement,  it  is 
regarded  by  the  law  as  a  complete  and  accomplished  crime, 
which  it  denominates  conspiracy,  and  defines  to  be  "  an  agree- 
ment to  do  against  the  rights  of  another  an  unlawful  act,  or 
use  unlawful  means." 

This  definition  carries  us  to  a  different  kind  of  case.  Where 
the  end  sought  is  criminal,  then,  as  already  explained,  a  solici- 
tation thereto  by  a  single  individual  would  be  criminal ;  and 
it  is  none  the  less  so  because  reciprocal.  But  we  may,  within 
this  definition,  have  a  case  where  the  end  sought  is  either  un- 
lawful, though  not  criminal,  or  in  itself  entirely  lawful. 
Here  again,  if,  although  the  end  be  lawful,  the  means  used  are 
criminal,  solicitation  to  use  those  means  would  be  itself  a 
crime :  thus  if  A  is  in  possession  of  lands  to  which  B  is  eu- 

1  C.  V.  Mink,  123  Mass.  422,  C.  104,  K.  110. 

2  Reg.  V.  Doody,  6  Cox  C  C.  463. 
8  C.  w.  Dennis,  105  Mass.  162. 

4  Blackburn  v.  S.,  23  0.  St.  146, 


Sect.  187.]  CONSPIRACY.  171 

titled,  the  obtaining  of  possession  by  B  is  a  lawful  end,  but  if 
he  endeavors  to  do  so  by  force  and  violence  he  becomes  a  crim- 
inal,^ and  if  C  incites  him  so  to  do,  C  himself  thereby  becomes 
a  criminal ;  and  if  C  and  13  solicit  each  other  so  to  do  and 
agree  thereto  they  are  both  guilty  of  conspiring  to  accomplish 
a  legal  end  by  criminal  jneans.  But  we  may,  further,  have  a 
case  where  neither  the  end  is  criminal  nor  the  means  such  as 
would  be  criminal  if  employed  by  a  single  individual.  This 
case  cannot  be  explained  on  any  principle  of  solicitation.  It 
is,  however,  well  established  that  it  is  immaterial  that  the  end 
sought  is  lawful,  provided  the  means  by  which  it  is  to  be  sought 
are  unlawful.  Nor  is  it  necessary  that  tliat  which  is  agreed  to 
be  done  should  be  criminal,  or  in  itself  indictable.  It  is  suffi- 
cient if  it  be  unlawful,"-^  the  criminality  of  the  act  being  found 
in  the  mere  fact  of  the  combination  by  which  an  undue  and 
perhaps  dangerous  power  and  efficacy  in  bringing  about  the 
purpose  sought  are  obtained. 

§  187.  In  What  Sense  Unlawful.  — Yet  perhaps  not  every  un- 
lawful act  will  support  an  indictment  for  conspiracy.  Tluis, 
it  has  been  held  in  England  that  an  agreement  to  trespass 
upon  the  lands  of  another,  as  to  poach  for  game,  is  no  conspir- 
acy.^ And  this  case  has  been  followed  in  New  Hampshire.* 
So  it  has  been  held  that  an  agreement  to  sell  an  unsound  horse 
with  a  warranty  of  soundness  is  not  an  indictable  conspiracy .° 
And  it  has  even  been  held  in  New  Jersey  that  to  support  an 
indictment  for  conspiracy  there  must  be  indictable  crime, 
either  in  the  end  proposed  or  the  means  to  be  used.*'  But  all 
these  are  cases  upon  which  later  decisions  have  thrown  great 

1  Ante,  §§  167-171. 

2  Reg.  V.  Bunn,  12  Cox  C.  C.  316,  1  Green's  Cr.  Law  Rep.  52;  Reg. 
V.  Warburton,  L.  R.  1  C.  C.  274;  S.  v.  Rowley,  12  Conn.  101;  Smith  v. 
P.,  25  111.  17;  S.  V.  Mayberry,  48  Me.  218;  C.  v.  Hunt,  4  Met.  (Mass.) 
Ill ;  S.  V.  Burnhara,  15  N.  H.  396  ;  P.  v.  Mather,  4  Wend.  (N.  Y.)  229, 
M.  385. 

3  Rex  V.  Turner,  13  East,  228. 

4  S.  V.  Straw,  42  N.  H.  393. 

5  Rex  V.  Pywell,  1  Stark.  402. 

6  S.  V.  Rickey,  4  Halst.  293. 


172  CRIMINAL  LAW.  [Sect.  187. 

doubt,  and  neither  perhaps  would  now  be  followed  except 
upon  its  exact  facts.^ 

It  may  be  that  some  unlawful  acts  or  means  might  be  held 
too  trivial  to  support  a  charge  of  conspiracy  ;  but  what  they 
are,  and  how  trivial,  we  have  no  means  of  determining.^ 

However  that  may  be,  it  seems  to  be  settled  that  all  combi- 
nations to  defeat  or  obstruct  the  course  of  public  justice,  as 
by  the  presentation  of  false  testimony,^  or  tampering  with  wit- 
nesses/ or  with  jurors,^  or  witli  the  making  up  of  the  panel,6 
or  preventing  the  attendance  of  witnesses,'^  or  by  destroying 
evidence,^  or  falsifying  a  public  record,^  or  rescuing  a  prisoner 
from  jaiP^  are  indictable  as  conspiracies,  not  only  because  of 
the  greater  power  given  by  combination  to  accomplish  the 
purpose  but  because  all  the  acts  mentioned  are  in  themselves 
criminal,!!  and  hence  any  solicitations  or  attempts  toward  them 
are  for  the  same  reason  a  crime. 

Another  class  of  cases  that  amount  to  conspiracies  are 
agreements  to  cheat  or  injure  the  public  or  individuals.  Thus 
a  plan  to  procure  copies  of  the  questions  to  be  put  by  a  State 
examining  board  ;!2  or  for  A  to  pass  a  civil  service  examina- 
tion for  and  in  the  name  of  B,!^  is  a  conspiracy.  So,  an  agree- 
ment to  collect  a  debt  in  a  manner  not  allowed  by  law,i^  or  to 
defraud  by  imposing  upon  the  public  a  spurious  article  for  the 

1  See  Reg.  v.  Kenrick,  5  Q.  B.  49;  Reg.  v.  Rowlands,  5  Cox  C.  C.  4GG, 
490;  Lambert  v.  P.,  9  Cow.  (N.  Y.)  578,  iu  addition  to  cases  cited  a7ite, 
§  186. 

^  See  Reg.  v.  Kenrick,  ante. 

3  Rex  V.  Mawbey,  6  T.  R.  610. 

*  Rex  V.  Johnson,  1  Show.  10. 

6  Rex  V.  Gray,  1  Burr.  510 ;  P.  v.  O'Donnell,  110  RL  App.  250. 

6  Gallaghers.  P.,  211  111.  158,  71  N.  E.  842. 

'   Rex  V.  Steventon,  2  East,  362. 

8  8.  V.  De  Witt,  2  Hill  (S.  C),  282. 

9  C.  V.  Waterman,  122  Mass.  43. 

10  Kipper  V.  S.,  42  Tex.  Cr.  R.  613,  62  S.  W.  420. 

11  Ante,  §§  13,  140,  146-154. 

12  S.  V.  Stewart,  32  Wash.  103,  72  P.  1026. 

18  U.  S.  V.  Curley,  122  Fed.  73S,  130  Fed.  1 ;  under  a  statute  punishing 
conspiracies  with  intent  to  defraud. 

1*  C.  V.  Stambaugh,  22  Pa.  Supr.  Ct.  380. 


Sect.  187.]  CONSPIRACY.  173 

genuine,^  or  by  running  up  the  price  of  goods  at  an  auction  by 
means  of  false  bids,^  or  by  manufacturing  false  news  or  using 
coercive  means  to  enhance  or  depress  the  price  of  property  or 
labor,^  or  by  unlawful  means  to  compel  an  employer  to  in- 
crease,* or  employees  to  reduce,^  the  rate  of  wages.  Under 
the  older  law  it  was  held  a  criminal  conspiracy  to  agree 
merely  not  to  work  for  less  than  a  given  wage.*^  But  it  seems 
clear  that  this  would  not  be  so  held  today.  Employees,  either 
individually  or  in  a  body,  have  a  right  to  refuse  to  work  for 
any  wage  that  does  not  satisfy  them."  If,  however,  the  agree- 
ment goes  beyond  this,  and  is  not  only  to  refrain  from  work- 
ing themselves,  but  to  compel  other  employees  also  to  refuse  to 
work,  or  to  join  the  union,  the  conspiracy  is  criminal.^  So  an 
agreement  by  boycotting  to  compel  an  employer  to  discharge 
certain  employees  is  criminal.^  So,  for  the  same  reason,  a 
combination  to  force  a  paper  to  reduce  its  advertising  rates.^'^ 

Another  class  of  criminal  conspiracy  is  that  embracing 
agreements  to  injure  or  disgrace  others  in  their  character, 
property,  or  business,  as  by  seducing  a  female,^^  or  by  abduct- 
ing a  minor  daughter,  for  the  purpose  of  marrying  her  against 

1  C.  D.  Judd,  2  Mass.  329. 

2  Reg.  V.  Lewis,  11  Cox  C.  C.  404. 

3  Vertue  v.  Clive,  4  Burr.  2473,  K.  401  ;  Reg.  v.  Blake,  6  Q.  B.  126; 
Levi  V.  Levi,  6  C.  &  P.  239 ;  Rex  v.  De  Berenger,  3  M.  &  S.  67  ;  P.  v. 
Sheldon,  139  N.  Y.  2ol,  34  N.  E.  785  ;  Morris  Run  Coal  Co.  v.  Barclay 
Coal  Co.,  68  Pa.  173. 

*  Reg.  V.  Bunn,  12  Cox  C.  C.  316;  C.  v.  Hunt,  4  Met.  (Mass.)  Ill;  S. 
V.  Donaldson,  32  N.  J.  L.  151 ;  P.  v.  Fisher,  14  Wend.  (N.  Y.)  9. 

5  Rex  V.  Hammond,  2  Esp.  719. 

*  Rex  V.  Journeyman-Tailors,  8  Mod.  10,  K.  404. 

■^  S.  V.  Stockford  (Conn.),  58  Atl.  769.  See  also  Cote  v.  Murphy, 
159  Pa.  420,  28  Atl.  190. 

8  S.  V.  Dyer,  67  Vt.  690,  32  Atl.  814. 

9  Rex  V.  Bykerdyke,  1  M.  &  R.  179,  M.  362;  S.  v.  Glidden,  55  Conn. 
46,  8  Atl.  890;  C.  v.  Hunt,  ante;  P.  v.  McFarlin,  43  Misc.  Rep.  (X.  Y.) 
591,  89  N.  Y.  S.  527  ;  S.  v.  Stewart,  59  Vt.  273,  9  Atl.  559,  M.  377  ; 
Crump  V.  C,  84  Va.  927,  6  S.  E.  620. 

10  S.  V.  Huegin,  110  Wis.  189,  85  X.  W.  1046.  For  a  further  discussion 
of  this  question  see  16  Harvard  L.  R.  389. 

11  Smith  I'.  P.,  25  111.  17;  S.  v.  Savoye,  48  la.  562;  Anderson  v.  C,  5 
Rand.  (Va.)  627. 


174  CRIMINAL   LAW.  [Sect.  188. 

the  wish  of  her  parents,^  or  by  hissing  an  actor  or  injuring  a 
play ,2  or  by  destroying  one's  property  or  depreciating  its  value,^ 
as  by  a  conspiracy  to  stifle  bidding  at  an  auction,*  or  by  de- 
ceiving a  partner  as  to  how  much  is  due  him  in  the  final 
settlements  of  the  partnership  accounts,^  or  by  falsely  charg- 
ing a  man  with  being  the  father  of  a  bastard  child,^  or  by 
getting  him  drunk  in  order  to  cheat  him.'  Of  course,  all 
agreements  to  commit  acts  in  themselves  criminal,  or  to  be 
accomplished  by  criminal  means,  and  all  acts  contra  honos 
morcs^  are  indictable  conspiracies. 

§  188.  Agreement  the  Gist  of  the  Offence.  — The  law  regards 
this  unlawful  combination  of  two  or  more  evil-disposed  per- 
sons as  especially  dangerous,  since  increase  of  numbers, 
mutual  encouragement  and  support,  and  organization,  increase 
the  power  for  and  the  probability  of  mischief.  And  the  con- 
spiracy is  punished  to  prevent  the  accomplishment  of  the 
mischief.  It  is,  therefore,  entirely  immaterial  whether  the 
agreement  be  carried  out,  or  whether  any  steps  be  taken  in 
pursuance  of  the  agreement ;  or  whether  the  defendant  with- 
drew before  the  crime  planned  was  completed,^  or  whether  the 
plan  was  likely  to  miscarry ,i*^  or  that  certain  additions  were 
afterward  made  to  the  agreemcnt.^^  When  the  agreement  is 
made,  the  crime  is  complete  ;^^  and  it  seems  to  be  settled, 
without  substantial  dissent,  that  persons  may  be  indictable 

1  Mifflin  V.  C,  5  W.  &  S.  (Pa.)  461.     See  Rex  v.  Wakefield,  2  Lewiu,  1. 

2  Clifford  V.  Brandon,  2  Camp.  35S. 
8  S.  V.  Ripley,  31  Me.  386. 

4  Levi  V.  Levi,  6  C.  &  P.  239. 

6  Reg.  V.  Warburton,  L.  R.  1  C.  C.  R.  274. 

6  Reg.  r.  Best,  2  Ld.  Raym.  1167. 

T  S.  V.  Younger,  1  Dev.  (N.  C)  3-57. 

8  Young's  Case,  2  T.  R.  734  (cited);  S.  v.  Murphy,  6  Ala.  765;  S.  v. 
Buchanan,  5  H.  &  J.  (Md.)  317. 

9  Dill  V.  S.,  35  Tex.  Cr.  Rep.  240,  33  S.  W.  126. 

10  P.  V.  Gilman,  121  Mich.  187,  80  N".  W.  4. 

11  C.  V.  Rogers,  181  Mass.  184,  63  N.  E.  421. 

12  Reg.  r.  Best,  2  Ld.  Raym.  1167;  Rex  v.  Gill,  2  B.  &  Aid.  205;  C.  i'. 
Judd,  2  IMass.  329;  C.  i'.  Ridgway,  2  Aslim.  (Pa.)  247;  Ilazen  v.  C,  23 
Pa.  355 ;  S.  v.  Noyes,  25  Vt.  415 ;  U.  S.  v.  Cole,  5  McLean  C.  Ct.  513, 
Fed.  Cas.  No.  14,832. 


Sects.  189,190.]  CONSPIPxACY.  175 

for  conspiring  to  do  that  which  they  might  have  individually 
done  with  impunity.^ 

If  the  conspiracy  be  executed,  and  a  felony  be  committed 
in  pursuance  of  it,  the  conspiracy  disappears,  being  merged  in 
the  felony,  and  punishable  as  part  of  it.^  It  is  otherwise,  how- 
ever, when  a  misdemeanor  is  committed.  Here  there  is  no 
merger,  and  the  conspiracy  is  separately  punishable.^ 

A  conspiracy,  from  its  very  nature,  must  be  participated  in 
by  more  than  one  person.  Hence,  husband  and  wife  alone 
cannot  be  indicted  for  this  offence.^  So,  if  all  but  one  of  the 
conspirators  are  acquitted,  that  one  cannot  be  found  guilty .^ 

§  189.  Intent.  —  As  in  common  law  offences  generally, 
there  must  be  an  actual  wrongful  intent  in  order  to  render  the 
conspiracy  criminal.  Thus,  if  a  person  be  deceived  into  be- 
coming a  conspirator,  and  is  himself  acting  in  good  faith,  he 
is  not  guilty.^  So,  if  two  parties  conspire  to  procure  another 
to  violate  a  statute,  in  order  that  they  may  extort  money  from 
him  by  threats  of  prosecution,  they  are  indictable.  But  if  the 
object  be  to  secure  the  detection  and  punishment  of  suspected 
offenders,  they  are  not.'^ 

§  190.  All  Equally  Guilty.  —  All  conspirators  are  equally 
guilty,  whether  they  were  partakers  in  its  origin,  or  became 
partakers  at  a  subsequent  period  of  the  enterprise  ;  and  each 

1  Reg.  V.  Gompertz,  9  Q.  B.  824  ;  S.  v.  Buchanan,  5  H.  &  J.  (.Aid.)  317  ; 
Morris  Run  Coal  Co.  v.  Barclay  Coal  Co.,  68  Pa.  173  ;  Berkowitz  v.  U.  S., 
93  Fed.  452. 

2  C.  V.  Blackburn,  1  Duv.  (Ky.)  4 ;  S.  v.  Mayberry,  48  INIe.  218;  C.  v. 
Kingsbury,  5  Mass.  106;  contra:  Reg.  v.  Button,  11  Q.  B.  Rep.  N.  S.  929; 
Graff  V.  P.,  108  111  App.  168;  Wait  v.  C,  24  Ky.  L.  R.  604,  69  S.  W.  697. 
Compare  S.  v.  Setter,  57  Conn.  461,  18  Atl.  782;  C.  v.  Dean,  109  Mass. 
349;  Johnson  i--.  S.,  26  N.  J.  L.  313. 

8  S.  V.  JNIurphv,  6  Ala.  765;  S.  r.  Murray,  15  Me.  100;  P.  v.  Richards, 
1  Mich.  216;  P.^.  Mather,  4  Wend.  (X.  Y.)  229,  M.  385;  S.  v.  Noyes, 
25  Vt.  415. 

4  P.  V.  Miller,  82  Cal.  107,  22  P.  934 ;  S.  v.  Clark,  9  Iloust.  (Del.)  536, 
33  Atl.  310 ;  C.  v.  Allen,  24  Pa.  Co.  Ct.  R.  65. 

8  Rex  V.  Thorp,  5  Mod.  221,  K.  407;  Rex  v.  Plummer,  [1902]  2  K.  B. 
339,  20  Cox  C.  C.  269;  S.  v.  Tom,  2  Dev.  (X.  C)  569. 

6  Rex  V.  Whitehead,  1  0.  &  P.  67. 

'  Hazen  v.  C,  23  Pa.  355 ;  but  compare  ante,  §  22a. 


176  CRIMINAL  LAW.  [Sect.  191. 

is  responsible  for  all  acts  of  his  confederates,  done  in  pursu- 
ance of  the  original  purpose.^ 

§  191.  EiFect  of  Local  Laws.  —  In  determining  what  is  in- 
dictable as  a  conspiracy  much  depends  upon  the  local  laws  of 
the  place  of  the  conspiracy.  It  may  well  be  that  in  one  juris- 
diction that  may  be  unlawful,  and  even  criminal,  which  in 
another  is  not ;  and  therefore  it  does  not  follow  that  because 
in  one  State  or  country  where  the  common  law  is  in  force  an 
agreement  to  do  a  particular  act  may  be  a  conspiracy,  the 
same  would  be  true  of  another.  This  would  depend  upon 
local  considerations.  An  indictment  and  conviction  in  one 
State  may  not  be  a  precedent  in  another.  Upon  this  point 
the  following  observations  ^  are  worthy  of  careful  considera- 
tion :  "  Although  the  common  law  in  regard  to  conspiracy  in 
this  Commonwealth  is  in  force,  yet  it  will  not  necessarily  fol- 
low that  every  indictment  at  common  law  for  this  offence  is  a 
precedent  for  a  similar  indictment  in  this  State.  The  general 
rule  of  the  common  law  is,  that  it  is  a  criminal  and  indictable 
offence  for  two  or  more  to  confederate  and  combine  together, 
by  concerted  means,  to  do  that  which  is  unlawful  or  criminal, 
to  the  injury  of  the  public,  or  portions  or  classes  of  the  com- 
munity, or  even  to  the  rights  of  an  individual.  This  rule  of 
law  may  be  equally  in  force  as  a  rule  of  the  common  law  in 
England  and  in  this  Commonwealth  ;  and  yet  it  must  depend 
upon  the  local  laws  of  each  country  to  determine  whether  the 
purpose  to  be  accomplished  by  the  combination,  or  the  con- 
certed means  of  accomplishing  it,  be  unlawful  or  criminal  in 
the  respective  countries.  All  those  laws  of  the  parent  country, 
whether  rules  of  the  common  law  or  early  English  statutes, 
which  were  made  for  the  purpose  of  regulating  the  wages  of 
laborers,  the  settlement  of  paupers,  and  making  it  penal  for 
any  one  to  use  a  trade  or  handicraft  to  which  he  had  not 


1  Frank  v.  S.,  27  Ala.  37;  S.  v.  Wilson,  30  Conn.  500;  Ferguson  v. 
S.,  32  Ga.  658;  P.  i'.  Mather,  4  Wend.  (N.Y.)  229,  M.  385.  Compare 
Handley  v.  S.,  115  Ga.  584,  4  S.  E.  992 ;  S.  v.  Furney,  41  Kan.  115,  21  P. 
213,  and  ante,  §  71. 

2  Shaw,  C.  J.,  C.  V.  Hunt,  4  Met.  (Mass.)  111. 


Sect.  191.]  CONSPIRACY.  177 

served  a  full  apprenticeship,  —  not  being  adapted  to  the  cir- 
cumstances of  our  colonial  condition,  —  were  not  adopted, 
used,  or  approved,  and  therefore  do  not  come  within  the  de- 
scription of  the  laws  adopted  and  confirmed  by  the  provision 
of  the  Constitution  already  cited.  This  consideration  will 
do  something  toward  reconciling  the  English  and  American 
cases,  and  may  .  .  .  show  why  a  conviction  in  England,  in 
many  cases,  would  not  be  a  precedent  for  a  like  conviction 
here." 


12 


178  CKIMINAL  LAW.  [Sects.  192,  193. 


CHAPTER  V. 

CRIMES   AGAINST   RELIGION,    MORALITY,    AND    DECENCY. 


§  193.  Apostasy. 

194.  Blasphemy. 

195.  Adultery. 

196.  Bigamy. 

197.  Seduction. 

198.  Abduction. 


§  199.  Kidnapping. 

200.  Abortion. 

201.  Lasciviousness. 

202.  Fornication. 

203.  Sodomy. 


§  192.  The  principal  common  law  crimes  of  this  class  are 
comprehended  mider  three  heads  :  crimes  against  Christianity, 
such  as  apostasy  and  blasphemy ;  crimes  against  the  family 
relation,  such  as  adultery,  bigamy,  seduction,  and  abortion  ; 
and  sexual  crimes,  such  as  lasciviousness,  fornication,  and 
sodomy. 

APOSTASY. 

§  193.  Apostasy  stands  at  the  head  of  the  list  of  crimes 
against  religion  of  which  the  ancient  common  law  took  cog- 
nizance, and  is  defined  as  a  total  renunciation  of  Christianity 
by  one  who  has  embraced  it.^  The  Church  of  England  was 
and  is  a  State  institution,  and  it  has  been  deemed  to  be  the 
duty  of  the  State  to  protect  it,  and  through  it  the  State 
religion.  Hence  the  common  law  punished  whatever  was 
calculated  to  injure  or  degrade  it.  Out  of  this  view  of  State 
policy  grew  the  common  law  crimes  of  Apostasy,  Heresy, 
Simony,  No n- conformity,  Reviling  the  Ordinatices  of  the 
Church,  Blasphemy,  and  Profane  Cursing  and  Swearing. 
None  of  these,  it  is  believed,  except  the  last  two,  have  ever 
been,  or  are  likely  to  be,  here  recognized  as  crimes  against 
the  State  ;  for  though,  as  has  already  been  seen,^  Christianity 
is  a  part  of  the  common  law  in  this  country  as  well  as  in 

1  4  Bl.  Com.  42.  ^  Ante,  §  2. 


Sect.  194.]  APOSTASY. —  BLASPHEMY.  179 

England,  yet,  as  we  have  no  established  church  and  no  estab- 
lished religion  to  which  the  State  is  bound  to  extend  its 
protection,  most  of  these  offences  are  left  to  the  discipline 
of  the  various  religious  bodies  in  which  they  may  arise. 
Blasphemy  and  profane  cursing  and  swearing,  however,  being 
offences  against  good  morals  as  well  as  hostile  to  the  spirit  of 
Christianity,  have,  by  exception,  in  this  country  been  held 
indictable,^  and  will  now  be  considered. 

BLASPHEMY. 

§  194.  Blasphemy  is,  literally,  evil-speaking.  But  only  that 
kind  of  evil-speaking  which  injuriously  affects  the  public  is 
taken  notice  of  by  the  common  law,  and,  under  this  particular 
head,  only  the  evil-speaking  of  sacred  things.  The  definitions 
of  blasphemy  differ,  according  to  the  different  views  enter- 
tained by  different  ages  and  countries  as  to  what  things  are 
so  sacred  as  to  require,  in  the  interest  of  public  order,  their 
protection  against  assault.  Thus,  in  Spain  it  is  held  to  be 
blasphemous  to  speak  evil  of  the  saints ;  ^  and  in  Woolston's 
Case'^  it  was  held  blasphemous  at  common  law  to  write  against 
Christianity  in  general,  while  it  was  intimated  that  learned 
men  might  dispute  about  particular  controverted  points. 
Though  tlie  common  law  is  understood  to  prevail  in  this 
country  relative  to  this  crime,  except  so  far  as  it  has  been 
abrogated  by  statute,  yet  it  cannot  be  doubted  that  its  applica- 
tion would,  at  the  present  day,  be  greatly  restricted.  No  such 
discussion  would  now  be  regarded  as  blasphemous,  unless 
executed  in  such  a  manner  as  to  betray  a  malicious  purpose 
to  calumniate  and  vilify,  and  to  such  an  extent  as  to  become 
an  injury  to  public  morals.  Good  morals,  being  one  of  the 
strong  foundations  of  social  order,  must  be  encouraged  and 
protected.  Whatever,  therefore,  tends  essentially  to  sap  such 
foundation  is  punishable,  upon  the  same  ground  as  is  the 
publication  of  obscene  writing  or  pictures. 

1  See  1  Bl.  Com.,  bk.  4,  c.  4. 

2  Bouv.  JJict.,  "  Blasphemy." 
»  2  Stra.  834. 


180  CRIMINAL  LAW.  [Sect.  194. 

No  category  of  tlie  sacred  things  with  reference  to  which 
blasphemy  may  be  committed  has  been  given  in  any  descrip- 
tion or  definition  of  the  offence  by  the  courts  or  text-writers. 
It  has  been  held  to  be  blasphemous  to  deny  the  existence  of 
God,  with  the  intent  to  calumniate  and  disparage  ;i  so,  to 
speak  of  the  Saviour  as  a  "  bastard,"  with  like  intent,^  or  as 
an  impostor  and  murderer  ;3  so,  with  like  intent,  to  speak  of 
the  Holy  Scriptures  as  "  a  fable,"  and  as  containing  "  many 
lies,"  ^  or  otherwise  maliciously  to  revile  them.^  Christianity 
is  a  part  of  the  common  law  of  this  country,  and  its  principles 
are  so  interwoven  with  the  structure  of  modern  society  that 
whatever  strikes  at  its  root  tends  manifestly  to  the  dissolution 
of  civil  government.  "  Blasphemy,"  says  Chancellor  Kent,'' 
"  according  to  the  most  precise  definitions,  consists  in 
maliciously  reviling  God  or  religion,"  —  as  satisfactory  a 
definition,  perhaps,  as  can  be  given,  taking  religion  to  mean 
that  body  of  doctrine  and  belief  commonly  accepted  as 
Christianity. 

Whether  the  words  are  spoken  or  written  is  immaterial. 
They  must,  however,  if  spoken,  be  heard  by  somebody,  and,  if 
written,  be  published.^ 

Many  of  the  States  have  enacted  statutes  prescribing  the 
punishment  which  shall  be  imposed  in  certain  cases  of  blas- 
phemy ;  but  these  statutes  are  not  regarded  as  changing  the 
common  law,  except  so  far  as  their  special  terms  provide. 
What  was  l)lasphemy  at  common  law  is  still  blasphemy,  sub- 
ject to  tlie  modifications  of  the  statute.^ 

Profanity  is  an  offence  analogous  to  blasphemy,  which  will 


1  C.  V.  Kneeland,  20  Pick.  (Mass.)  206. 

2  S.  V.  Chandler,  2  Harr.  (Del.)  553  ;  P.  v.  Ruggles,  8  Johns.  (N.  Y.) 
290. 

3  Rex  V.  Waddington,  1  B.  &  C  26. 

"  Updegraph  v.  C,  11  S.  &  R.  (Pa.)  39i. 
5  Rex  V.  Hetherington,  5  Jur.  (1st  ser.)  529. 
^  P.  V.  Ruggles,  ante. 

T  P.  V.  Porter,  2  Parker  (N.  Y.),  C.  R.  114  ;  S.  v.  Powell,  70  N.  C. 
67. 

8  1  Bish.  Cr.  Law,  §  80,  and  cases  there  cited. 


Sect.  195.]  BLASPHEMY.  — ADULTERY.  181 

he  further  treated  under  the  head  of  Nuisance,  of  which  both 
offences  are  special  forms. ^ 

ADULTERY. 

§  195.  Adultery  is  the  unlawful  and  voluntary  sexual  inter- 
course between  two  persons  of  opposite  sexes,  one  at  least  of 
whom  is  married.  It  is  not  an  offence  at  common  law,^  and 
although  in  most  of  the  States  it  is  not  made  criminal,  it  is  in 
some  of  them  cognizable  only  in  the  ecclesiastical  tribunals. 
The  foregoing  definition  is  based  upon  the  general  terms  of 
the  statutes  of  the  several  States  under  which  it  is  not  mate- 
rial which  of  the  parties  is  married,  the  offence  being  adultery 
on  the  part  of  the  married  person,  and  fornication  on  the  part 
of  the  unmarried.^  But  it  embraces  a  wider  field,  no  doubt, 
than  comes  within  the  original  idea  of  adultery,  which  was 
the  introduction  of  spurious  offspring  into  the  family,  whereby 
a  man  may  be  charged  with  the  maintenance  of  children 
not  his  own,  and  the  legitimate  offspring  be  robbed  of  their 
lawful  inheritance,  making  it  necessary  that  one  of  the  parties 
should  be  a  married  woman.  In  some  of  the  States,  this  idea 
still  prevails  as  to  criminal  prosecutions  for  adultery,  while  in 
suits  for  divorce  the  intercourse  of  a  married  man  with  an 
unmarried  woman  is  held  to  be  adultery.*  The  statutes  of 
the  several  States  so  differ,  however,  that  while  in  some  States 
intercourse  of  an  unmarried  man  with  a  married  woman  is 
adultery  on  the  part  of  the  man,^  in  others  intercourse  by  a 

1  The  question  of  the  unconstitutionality  of  such  laws,  as  restrictive 
of  the  liberty  of  speech  and  of  the  press,  is  elaborately  discussed,  and 
decided  in  the  negative,  by  Shaw,  C.  J.,  in  Com.  v.  Kneeland  (ante), 
which,  with  the  cases  in  New  York  and  Pennsylvania  before  cited,  are 
leading  cases  upon  the  subject. 

2  4  Bl.  Com.  65. 

8  Miner  v.  P.,  58111.  59;  S.  v.  Hutchinson,  36  Me.  261 ;  C.  v.  Call,  21 
Pick.  (Mass.)  509.  In  other  States  it  is  adultery  by  both  parties:  S.  i\ 
Hinton,  6  Ala.  864;  Lyman  v.  P.,  198  III.  544,  64  N.E.  974;  S.  v.  Wilson, 
22  la.  364;  S.  v.  Byrura,  60  Neb.  384,  83  N.  W.  207. 

*  S.  IK  Armstrong,  4  Minn.  335. 

6  S.  V.  Pearce,  2  Blackf.  (Ind.)  318;  S.  v.  Weatherby,  48  Me.  258; 
S.  V.  Wallace,  9  N.  H.  515. 


182  CRIMINAL   LAW.  [Sect.  196. 

married  man  with  an  unmarried  woman  is  not  adultery  on 
the  part  of  the  latter,^  and  in  others,  an  unmarried  man  can- 
not commit  adultery .^ 

That  the  parties  cohabited  in  the  honest  belief  that  they 
had  a  right  to,  and  did  not  intend  to  commit  the  crime,  is  no 
defence,  as  has  already  been  shown. ^ 

"Open  and  notorious  adultery"  cannot  be  shown  by  the 
mere  act  of  adultery.  The  fact  of  openness  and  notoriety 
must  be  proved,  and  that  the  party  charged  publicly  and 
haliitually  violated  the  law.^  So  "living  in  adultery"  means 
more  than  a  single  act  of  illicit  intercourse.^ 

Where  two  are  charged  with  adultery,  committed  together, 
they  may  be  tried  together;  and  one  may  be  tried  and  con- 
victed, though  the  other  has  not  been  arrested.*^  So  where  one 
of  the  parties  was  so  intoxicated  as  to  be  ignorant  that  the  act 
was  committed,  the  other  may  be  convicted  alone.^  And  it 
has  been  held  that,  where  the  parties  are  tried  separately,  and 
one  is  acquitted,  the  other  may  be  convicted.^  But  where 
they  are  tried  together,  it  would  of  course  be  impossible  to 
acquit  one  and  convict  the  other. ^ 

BIGAMY. 

196.  Bigamy,  otherwise  called  polygamy,  or  the  offence 
of  having  a  plurality  of  wives  or  husbands  at  the  same  time, 

1  Cook  V.  S.,  11  Ga.  53;  S.  v.  Armstrong,  4  Minn.  335;  S.  v.  Lasli,  16 
N.  J.  L.  380. 

2  Kesp.  V.  Roberts,  2  Dall.  (Pa.)  124;  C.  v.  Lafferty,  6  Grat.  (Va.)  672. 

3  Ante,  §§  52  et  seq. ;  S.  v.  Goodenow,  65  Me.  30. 

4  P.  V.  Gates,  46  Cal.  52;  Miner  v.  P.,  58  111.  59;  Wright  v.  S.,  5 
Blackf.  (Jnd.)  358;  S.  v.  Marvin,  12  la.  499;  Carrotti  v.  S.,  42  Miss. 
334  ;  S.  V.  Crowner,  56  Mo.  147 ;  ante,  §  15. 

5  Smith  V.  S.,  39  Ala.  554;  Bodiford  v.  S.,  86  Ala.  67,  5  So.  559  ;  Jack- 
son V.  S.,  116  Tnd.  464,  19  N.  E.  330;  Richardson  v.  S.,  37  Tex.  346  ; 
Collins  V.  S.  (Tex.),  80  S.  W.  372. 

6  S.  V.  Carroll,  30  S.  C.  85,  8  S.  E.  433. 

T  C.  V.  Bakeman,  131  Mass.  577 ;  S.  v.  Cutshall,  109  N.  C,  764,  14  S. 
E.  107. 

8  Alonzo  V.  S.,  15  Tex.  App.  378. 

9  S.  V.  Rinehart,  106  N.  C.  787,  11  S.  E.  512. 


Sect.  196.]  BIGAMY.  '  183 

was,  like  adultery,  an  offence  of  ecclesiastical  cognizance,  but 
ultimately  became  a  statutory  offence,^  tlic  marrying  another 
by  a  person  already  married  and  having  a  husband  or  wife 
living  being  made  a  felony.  This  statute  was  adopted  by  Mary- 
land as  one  which  "  by  experience  had  been  found  applicable  to 
their  local  and  other  circumstances,"  and  is  there  held  to  this 
day,  except  as  to  the  punisliment,  to  be  a  part  of  the  common 
law.  And  by  the  law  of  Maryland  the  crime  is  a  felony,  as 
doubtless  it  is  in  other  States,  where  punishment  in  the  State 
prison  is  or  may  be  the  penalty .^  It  is  substantially  the  law 
in  most,  if  not  all,  of  the  States  of  the  Union. 

It  is  only  the  second  marriage  which  is  criminal ;  and  there- 
fore, if  the  first  marriage  be  in  one  jurisdiction  and  the  second 
in  another  jurisdiction,  the  crime  is  only  committed  in,  and  of 
course  only  cognizable  by  the  tribunals  of,  the  latter.^  Equally, 
of  course,  if  the  first  marriage  is  invalid,  the  second  is  no 
offence  anywhere,  —  in  fact,  there  is  no  second  marriage.* 
Thus  where  the  defendant  first  marries  A,  then,  while  she  is 
still  his  wife,  marries  B,  and  then,  after  the  death  or  divorce 
of  A,  but  while  his  relation  with  B  is  unchanged,  marries  C, 
this  last  marriage  is  not  bigamous,  since  the  marriage  with 
B,  because  of  the  then  subsisting  marriage  with  A  was 
wholly  void  ;  and  the  later  dissolution  of  the  latter  leaves  him 
single.^  We  must,  however,  distinguish  cases  where  the  first 
marriage  is  not  void  but  simply  voidable,  as,  for  example,  if 
contracted  under  the  age  of  consent ;  the  mere  fact  of  its 
voidability  does  not  make  the  second  the  less  bigamous,*^  simi- 

1  1  James  I,  c.  11  ;  4  Bl.  Com.  16i. 
^  Ante,  §  10. 

3  1  Hawk.  P.  C.  bk.  1,  c.  43 ;  Johnson  v.  C,  86  Ky.  122,  5  S.  W.  365; 
Putnam  v.  Putnam,  8  Pick.  (Mass.)  433;  C.  v.  Lane,  113  Mass.  458;  P. 
V.  I^Iosher,  2  Park.  (N.  Y.)  C.  R.  195. 

4  P.  V.  Slack,  15  Mich.  103;  Shafher  v.  S.,  20  0.1;  S.  v.  Barefoot,  2 
Rich.  (S.  C.)  209;  McReynolds  v.  S.,  5  Cold.  (Tenn.)  18. 

5  C.  V.  M'Grath,  140  Mass.  296,  6  N.  E.  515 ;  Lane  v.  S.,  82  Miss.  555, 
34  So.  353;  Keneval  v.  S.,  107  Tenn.  581,  64  S.  W.  897;  S.  v.  Goodrich, 
14  W.  Va.  834. 

6  S.  V.  Barefoot,  ante;  P.  v.  Slack,  ante ;  Beggs  v.  S.,  55  Ala.  108;  P.  v. 
:\IcQuaid,  85  Mich.  123,  48  N.  W.  161 ;  S.  v.  Cone,  86  Wis.  498,  57  X. 
W.  50. 


184  CRIMINAL  LAW.  [Sect.  196. 

larly  if  the  first  marriage  has  been  ratified  by  subsequent 
cohabitation.^ 

Of  course  the  fact  that  the  bigamous  marriage  is  void  is  no 
defence.  In  the  nature  of  things  there  can  be  but  one  lawful 
marriage,  and  if  the  first  be  valid  the  second  is  void  ;  nor  is 
it  material  that  the  second  would  be  void  on  other  grounds. 
The  offence  consists  in  the  entering  into  a  void  marriage 
while  a  prior  valid  marriage  relation  exists,^  and  is  complete 
without  cohabitation.^ 

A  divorce  may,  and  unless  restricted  in  its  terms  usually 
does,  annul  the  former  marriage,  so  as  to  make  the  second  one 
valid.  In  some  States,  however,  the  guilty  party  in  a  divorce 
for  adultery  on  his  part  may  be  guilty  of  polygamy  by  marry- 
iug  without  leave  of  court  wliile  his  divorced  wife  is  living.* 
But  after  a  divorce  in  one  State,  a  marriage  in  another,  valid 
by  the  laws  of  that  State,  followed  by  a  return  to  the  State 
where  the  divorce  was  granted,  and  a  cohabitation  there  with 
the  second  wife,  will  not  be  held  polygamous,  unless  the  sec- 
ond wife  be  an  inhabitant  of  the  State  granting  the  divorce, 
and  the  parties  went  to  another  State  to  be  married,  in  order 
to  evade  the  law.^  Conversely,  the  fact  that  in  the  divorce 
from  the  first  marriage  the  defendant  was  forbidden  to  re- 
marry will  not  make  the  second  one  void  so  as  to  render  a 
third  non-bigamous.^  So  if  the  party  goes  to  another  State 
merely  for  the  purpose  of  obtaining  a  divorce,  and  obtains  it 
by  fraud,  it  will  be  of  no  avail  to  him  on  his  return  to  the 

1  Hampton  v.  S.,  45  Ala.  82 ;  McReynolds  v.  S.,  ante. 

2  Keg.  V.  Brawn,  1  C.  &  K.  144;  Reg.  v.  Allen,  L.  R.  1  C.  C.  367; 
Robinson  v.  C,  6  Bush.  (Ky.)  309;  P.  v.  Brown,  34  Mich.  339;  Hayes  v. 
P.,  25  N.  Y.  390;  Carmichael  v.  S.,  12  O.  St.  5.53. 

8  Nelms  V.  S.,  84  Ga.  406,  10  S.  E.  1087;  C.  v.  Lucas.  158  Mass.  81, 
32  N.  E.  1033;  S.  v.  Smiley,  98  Mo.  605,  12  S.  W.  247;  Gise  v.  C,  81  Pa. 
428. 

4  C.  V.  Putnam,  1  Pick.  (Mass.)  136;  Baker  v.  P.,  2  Hill  (N.  Y.),  325. 

5  C.  0.  Lane,  113  Mass.  458,  semble ;  Pennegar  v.  S.,  87  Tenn.  244,  10 
S.  W.  305.  So  with  miscegenation  :  S.  v.  Kennedy,  76  X.  C.  251 ;  Kinney 
V.  C,  30  Grat.  (Va.)  858;  contra:  Stevenson  i;.  Gray,  17  B.  Mou.  (Ky.) 
193  ;  Medway  v.  Xeedham,  16  Mass.  157. 

«  Thompson  v.  S.,  28  Ala.  12. 


Sect.  197.]  BIGAMY.— SEDUCTION.  185 

State  lie  left  and  marrying  again  there.^  So  if  the  State 
granting  the  divorce  had  no  jurisdiction  ;2  and  it  has  been  held 
that  the  crime  may  be  committed  although  the  defendant  in 
good  faith  believed  his  former  partner  was  dead  or  divorced.^ 
The  bigamy  statutes,  however,  generally  contain  a  provision 
whereby  the  defendant  is  freed  from  criminal  liability  if  he 
marries  only  after  a  lapse  of  a  specified  number  of  years  if  he 
has  no  grounds  to  believe  the  absent  spouse  to  be  alive. 
Whether  the  formerly  unmarried  party  to  a  polygamous  mar- 
riage, if  he  mai-ried  with  knowledge  of  the  other  party's  disa- 
bility, is  also  guilty  of  any  offence,  and  what, is  an  open  question, 
and  may  be  solved  differently  in  different  States,  according  to 
the  degree  of  the  principal  offence,  whether  felony  or  misde- 
meanor, or  by  special  provisions  of  the  statute.* 

SEDUCTION. 

§  197.  It  is  at  least  doubtful  whether  seduction  was  an 
indictable  offence  by  the  old  common  law.^  It  seems,  how- 
ever, to  have  been  the  subject  of  statutory  prohibition  as  long 
ago  as  the  time  of  Philip  and  Mary ,6  whereby,  after  reciting 
that  "  maidens  and  women  "  are,  "  by  flattery,  trifling  gifts, 
and  fair  promises,"  induced  by  "unthrifty  and  light  person- 
ages," and  by  those  who  "  for  rewards  buy  and  sell  said  maid- 
ens and  children,"  it  is  made  unlawful  for  any  person  or 
persons  to  "take  or  convey  away,  or  cause  to  be  taken  or 
conveyed  away,  any  maid  or  woman  child,  being  under  the 

1  Crawford  v.  S.,  73  Miss.  172,  18  So.  818. 

2  P.  r.  Dawell,  25  Mich.  247;  S.  v.  Armington,25  Minn.  29;  Andrews 
V.  Andrews,  188  U.  S.  14.  Compare  P.  v.  Baker,  70  N.  Y.  78;  Atherton 
V.  Atherton,  181  U.  S.  155. 

3  Rogers  i:  C,  2i  Ky.  L.  R.  119,  68  S.  W.  14;  C.  v.  Mash,  7  Met. 
(Mass.)  472,  C.  88;  contra:  Reg.  v.  Tolson,  L.  R.  23  Q.  B.  D.  168,  K. 
15;  Squire  v.  8.,  46  Ind.  459,  C.  90;  Welch  v.  S.  (Tex.),  81  S.  W.  50. 
Compare  P.  v.  Hartman,  130  Cal.  487,  62  P.  823;  S.  v.  Goodenow,  65  Ue. 
30 ;  S.  V.  Zichfield,  23  Nev.  304,  46  P.  802;  ante,  §§  53  et  seq. 

4  See  Bish.  Cr.  Proc,  §  594;  Boggus  i'.  S.,  34  Ga.  275. 

5  Rex  V.  Moor,  2  Mod.  128 ;  Rex  v.  Marriot,  4  Mod.  144,  1  East  P.  C. 
448. 

«  4  &  5  Ph.  &  M.,  c.  8,  §§  1,  2. 


186  CRIMINAL  LAW.  [Sect.  197. 

age  of  sixteen  years,"  out  of  the  possession  of  their  lawful 
custodian.  There  seems  to  be  no  reason  to  doubt  that  this 
statute  became  a  part  of  the  common  law  of  the  Colonies,^ 
and  it  seems  to  have  been  adopted  by  statute,  and  acted  upon 
in  South  Carolina  with  certain  modifications,  —  the  limitation 
to  heiresses,  for  instance,  being  regarded  as  not  applicable  to 
the  condition  of  society  in  that  jurisdiction.  Indeed,  it  was 
held  that  such  a  limitation  was  not  in  the  act  itself  fairly  in- 
terpreted.^ The  distinction  between  abduction  and  seduction 
seems  to  be  that  the  former  is  presumed  to  be  by  force,  or  its 
equivalent,  for  the  purposes  of  marriage  or  gain  ;  while  the 
latter  is  presumed  to  be  without  force,  and  by  enticement, 
for  the  purpose  of  illicit  intercourse.^  The  distinction  is  by 
no  means  clearly  made,  and  the  decisions  in  indictments  for 
abduction  and  seduction  will  be  found  interchangeably  useful 
to  be  consulted.  In  Connecticut,  the  statute  punishes  "  who- 
ever seduces  a  female  "  ;  and  seduction  is  held  ex  vi  termini  to 
imply  sexual  intercourse,  and  is  defined  to  be  "  an  enticement " 
of  the  female  "  to  surrender  her  chastity  by  means  of  some 
art,  influence,  promise,  or  deception  calculated  to  effect  that 
object  "  ;  and  the  seduction  is  proved,  though  it  appear  that  it 
followed  a  promise  of  marriage  made  in  good  faith.*  Here, 
too,  as  in  the  cases  to  be  cited  illustrative  of  the  statutes 
against  abduction,  by  "  previous  chaste  character  "  is  meant 
actual  personal  virtue,^  which  is  presumed  to  exist,  unless  it 
be  shown  that  the  woman  has  had  illicit  intercourse  with  the 
defendant  or  another  prior  to  the  seduction,^  and  may  still 

1  C.  V.  Knowlton,  2  Mass.  530,  C.  1. 

2  S.  V.  Findlay,  2  Bay  (S.  C),  418 ;  S  v.  O'Bannon,  1  Bail.  (S.  C.)  lU. 
See  also  S.  r.  Tidwell,  5  Strobh.  (S.  C.)  1,  which,  however,  is  a  case  for 
abduction  under  the  third  and  fourth  sections  of  the  statute. 

3  S.  V.  Ci-awford,  3i  la.  40. 

4  S.  V.  Bierce,  27  Conn.  319;  S.  v.  Brandenburg,  118  iAIo.  181,  23  S. 
W.  1080;  Dinkey  v.  C,  17  Pa.  126;  Croghan  i'.  S.,  22  Wis.  Ui.  See 
the  statutes  of  several  States  collected,  8  .'\mer.  St.  Rep.  870,  n. 

5  Munkers  v.  S.,  87  Ala.  91,0  So.  357;  Walton  v.  S.,  71  Ark.  398, 
75  S.  W.  1  ;  Lyons  v.  S.,  52  Ind.  126  ;  S.  v.  Smith,  124  la.  334,  100  N.  W. 
40;  Kenyon  v.  P.,  26,X.  Y.  203;  Crozier  v.  P.,  1  Park.  (N.  Y.)  C.  C.  453. 

«  Caldwell  v.   S.  (Ark.),  83  S.  W.  929;   Wood  v.  S.,  48   Ga.  192; 


Sect.  197.]  SEDUCTION.  187 

exist  if  it  be  shown  that,  tliough  at  some  former  time  she  may 
have  yielded  to  the  defendant,  she  had  reformed,  and  was  a 
chaste  woman  at  the  time  of  the  seduction. ^  And  it  seems 
that,  if  the  alleged  seducer  be  a  married  man,  and  known  to 
be  such  by  the  female  said  to  have  been  seduced,  and  the 
means  of  seduction  are  alleged  to  be  a  promise  of  marriage, 
this  is  not  such  a  false  and  fraudulent  act  as  could  lead  to  the 
betrayal  of  the  confidence  of  any  virtuous  woman,  and  lias  not 
therefore  the  element  of  fraud  which  is  necessary  to  constitute 
the  crime  of  seduction.^  So  where  the  promise  to  marry  is  no 
part  of  the  influence  under  which  the  woman  yields,  but  is  a 
mere  matter  of  bargain,  there  is  no  seduction.^  So  where  she 
is  willing  to  have  intercourse,  but  stipulates  for  a  marriage  in 
the  event  of  pregnancy.^     Where,  however,  the  promise  in  the 


S.  r.  Iligdon,  32  la.  262;  P.  v.  Brewer,  27  Mich.  134;  P.  v.  Clark,  33 
]\lich.  112  ;  Ferguson  v.  S.,  71  Miss.  80.5,  16  So.  3-35;  P.  v.  Kearney,  110 
N.  Y.  188,  17  N.  E.  736;  Griffin  v.  S.,  109  Tenn.  17,70  S.  W.  61;  Barnard 
V.  S.  (Tex.),  76  S.  W.  475;  Mills  v.  C,  93  Va.  81.3,  22  S.  E.  833  ;  con- 
tra: that  the  defendant  being  presumed  to  be  innocent  the  burden  is 
on  the  prosecution  to  show,  as  one  of  the  elements  in  its  case,  that  the 
woman  was  chaste,  P.  v.  Wallace,  100  Cal.  611,  42  P.  159;  Williams  v. 
S.,  130  Ind.  58,  29  N.  E.  1078;  C.  v.  Whittaker,  131  Mass.  224;  S.  v. 
Lockerby,  50  Minn.  363,  52  X.  W.  958  ;  S.  v.  Eckler,  106  Mo.  585,  17  S. 
W.  814;"  Harvey  r.  T.,  11  Okl.  156,  05  P.  837;  Oliver  v.  C,  101  Pa.  215. 

1  Wilson  V.  S.,  73  Ala.  527  ;  S.  v.  Carron,  18  la.  372 ;  P.  y.  Gibbs, 
70  Mich.  425,  38  N.  W.»257;  S.v.  Timmens,  4  Minn.  325;  S.  v.  Thornton, 
108  Mo.  640,  18  S.  W.  841.  But  see  Cook  r.  P.,  2  T.  &  C.  (X.  Y.) 
404. 

2  Wood  I'.  S.,  a7ile;  Hinkle  v.  S.,  157  Ind.  237,  61  N.  E.  196  ;  P.  v. 
Alger,  1  Parker  C.  C.  (N.  Y.)  333.  See  also  Boyce  v.  P.,  55  N.  Y.  644, 
and  post,  §  198.  The  case  of  Wood  v.  S.  is  sometimes  cited  as  holding 
the  doctrine  that  it  is  not  necessary,  in  order  to  show  that  a  woman  is  not 
a  virtuous  woman,  to  prove  that  she  has  been  guilty  of  previous  illicit 
intercourse,  but  it  is  sufficient  to  show  that  her  mind  has  become  deluded 
by  unchaste  and  lustful  desires.  But  though  this  was  the  view  of  the 
judge  who  gave  the  opinion,  it  was  distinctly  disavowed  by  Warren,  C.  J., 
and  Trippe,  J.,  —  a  majority  of  the  court,  —  who  held  to  the  contrary. 

8  P.  V.  Clark,  33  Mich.  112 ;  S.  v.  Reeves,  97  Mo.  668,  10  S.  W.  811. 

*  P.  V.  Van  Alstyne,  144  N.  Y.  361,  39  N.  E.  343 ;  P.  v.  Ryan,  63  App. 
Div.  (N".  Y.)  429,  71  N.  Y.  S.  527 ;  S.  v.  Adams,  25  Or.  172,  35  P.  36 ; 
contra  :  S.  v.  O'Hare  (Wash.),  79  P.  39. 


188  CRIMINAL   LAW.  [Sect.  198. 

event  of  pregnancy  is  merely  one  of  the  elements  leading  to 
the  consent,  there  may  be  a  seduction.^ 

The  actual  consent  of  the  woman  is  not  necessary  in  order 
to  constitute  the  crime  of  seduction  ;  ^  but  if  such  force  is 
used  as  amounts  to  a  rape,  the  crime  of  seduction  is  not  com- 
mitted.^ 

ABDUCTION. 

§  198.  Abduction  was  made  a  crime  by  an  old  statute,*  — 
sufficiently  old  to.  have  been  brought  with  our  ancestors  to 
this  country  as  part  of  the  common  law,^  The  specific  offence 
seems  to  have  been  limited  to  the  taking  away  for  lucre,  —  no 
doubt  by  force,  fraud,  or  fear, —  of  adult  females,  "maid, 
widow,  or  wife,"  having  property,  or  being  heirs  apparent,  for 
the  purpose  of  marriage.  A  taking  for  lucre  and  a  marriage 
or  defilement  are  essential  to  the  completion  of  the  offence.^ 
And  perhaps  the  distinction  between  this  offence  and  kidnap- 
ing consists  in  this  limitation, — kidnapping  relating  to  the 
taking  away  of  any  person,  and  more  especially  children,  for  any 
unlawful  purpose.  It  may  be,  also,  that  a1)duction  might  be 
complete  without  taking  the  person  abducted  out  of  the  realm, 
but  only  from  home  to  some  other  place  within  the  realm  ; 
while  it  was  essential  to  the  act  of  kidnapping  that  the  person 
seized  should  be  taken  out  of  the  country,  or,  at  all  events, 
seized  with  that  intent.'^  It  is  now  an  offence  for  the  most 
part,  if  not  entirely,  regulated  by  statute. 

These  statutes  variously  describe  and  define  the  offence. 
"While  the  substance  is  substantially  the  same  in  all,  yet  there 
are  specific  differences  which  distinguish,  and  leave  it  uncer- 

1  Cherry  v.  S.,  112  Ga.  871,  38  S.  E.  341;  S.  v.  Hughes,  106  la.  125, 
76  N.  W.  520.     As  to  the  effect  of  subsequent  marriage,  see  ante,  §  23a. 

2  S.  V.  Horton,  100  N.  C.  443,  6  S.  E.  238. 

8  S.  V.  Lewis,  48  la.  578 ;  P.  v.  De  Fore,  64  Mich.  693,  31  N.  W.  585. 

*  3  Hen.  VII,  c.  6. 

6  C.  V.  Knowlton,  2  Mass.  530,  C.  1. 

6  Baker  v.  Hall,  12  Coke,  100;  C.  v.  Xickerson,  5  All.  (Mass.)  519, 
M.  75;  Gould  v.  S.  (Neb.),  99  N.  W.  541 ;  Griffin  v.  S.,  109  Tenu.  17, 
70  S.  W.  61 ;  S.  V.  Rhoades,  29  Wash.  61,  69  P.  389. 

">  See  post,  §  199,  Tores  v.  S.  (Tex.),  63  S.  W.  880. 


Sect.  198.]  ABDUCTION.  189 

tain,  till  a  comparison  of  the  statutes  solves  the  question, 
whelher  the  decisions  in  one  State  are  applicable  to  the  stat- 
utes in  another.  Under  these  several  statutes  it  has  been  held 
that  abduction  "for  the  purpose  of  prostitution,"  means  for 
general  and  promiscuous  illicit  intercourse.  A  mere  seduc- 
tion and  illicit  intercourse  ^  with  the  seducer  does  not  amount 
to  prostitution.^  But  if  the  purpose  is  that  the  woman  shall 
enter  into  such  a  course  of  life  as  shall  constitute  prostitution 
or  concubinage,  the  crime  is  at  once  committed  ;  no  long  con- 
tinuance of  the  life  is  necessary. ^  Where  a  statute  provides 
that  the  person  so  abducted  must  have  been  of  previous  chaste 
character,  the  abduction  of  a  person  who  had  been  previously 
a  prostitute  is  not  within  the  statute,  unless  she  had  reformed.* 
If  she  had  previously  had  intercourse  w4th  the  defendant  only, 
it  seems  that  this  cannot  be  held  to  be  conclusive  of  previous 
unchaste  character.  The  unchastity  must  be  with  other  men.^ 
In  a  case  in  Indiana,^  a  distinction  is  made  between  the  phrase 
"  of  previous  chaste  character,"  as  used  in  the  statute  against 
abduction,  and  the  phrase  "  of  good  repute  for  chastity,"  used 
in  another  section  of  the  same  statute  against  seduction.  In 
the  former  case,  a  single  proven  act  of  illicit  intercourse  is  ad- 
missible in  defence,  as  the  issue  is  actual  personal  virtue ; 
while  in  the  latter  case  it  might  not  be,  as  reputation  is  the 
issue.  But  the  distinction  is  between  "  character  "  used  in 
one  statute,  and  "  repute  "  used  in  the  other ;  and  it  may  be 
doubted  if  the  distinction  is  not  too  fine.  Very  high  authori- 
ties treat  character  and  reputation  as  substantially  identical.''' 
It  is  also  held  under  these  statutes  that  within  the  meaning 

1  Haygood  v.  S.,  98  Ala.  61,  13  So.  325;  Bunfil  v.  P.,  154  111.  640,  39 
N.  E.  565;  S.  v.  Gibson,  108  Mo.  575,  18  S.  W.  1109;  U.  S.  v.  Zes  Cloya, 
35  Fed.  493. 

2  S.  V.  Ruhl,  8  la.  447;  S.  v.  StoyeU,  54  Me.  24  ;  C.  v.  Cook,  12  Met. 
(Mass.)  93;  S.  v.  Rorebeck,  158  Mo.  130,  59  S.  \V.  67;  S.  v.  Brow,  64 
N.  H.  577,  15  Atl.  21G  ;  P.  v.  Parshall,  6  Park.  (N.  Y.)  C.  R.  129. 

3  Henderson  v.  P.,  124  111.  607,  17  N.  E.  68. 

4  S.  V.  Carron,  18  la.  372;  Carpenter  v.  P.,  8  Barb.  (X.  Y.)  603. 
6  S.  V.  Willspaugh,  11  Mich.  278. 

6  Lyons  V.  S.,  52  Ind.  426. 

'  See  1  Greenl.  Ev.,  §  461  and  notes. 


190  CRIMINAL  LAW.  [Sects.  199,  200. 

of  the  term  "  forcible  abduction "  are  included  cases  where 
tlie  mind  of  the  person  is  operated  upon  by  falsely  exciting 
fears,  by  threats,  fraud,  or  other  unlawful  or  undue  influence 
amounting  substantially  to  a  coercion  of  the  will,  and  an  effect- 
ive substitute  for  actual  force.^  And  a  child  four  years  old 
is  incapable  of  consenting  to  be  taken  away  by  the  father  from 
the  mother.2  Where  a  statute  limits  tlie  offence  to  the  abduc- 
tion of  persons  within  a  specified  age,  it  is  held  that  the  fact 
that  the  abductor  did  not  know,  or  even  the  fact  that  he  had 
reason  to  believe,  and  did  believe,  that  the  person  taken  away 
was  not  within  tlie  designated  age,  is  immaterial.  The  act  is 
at  the  peril  of  the  perpetrator.^ 

KIDNAPPING. 

§  199.  Kidnapping  is  defined  by  Blackstone  as  the  forcible 
abduction  or  stealing  away  of  a  man,  woman,  or  child  from 
his  own  country  and  sending  him  away  to  another.^  And  this 
definition  has  been  adopted,  with  the  modification  that  the 
carrying  away  need  not  be  into  another  country.^  It  is  false 
imprisonment,  with  the  element  of  abduction  added.'^  And 
here,  as  in  false  imprisonment,  fraud  or  fear  may  supply  the 
place  of  force." 

ABORTION. 

§  200.  Although  there  is  ^  the  precedent  of  an  indictment 
for  an  attempt  to  procure  an  abortion  as  a  crime  at  common 
law,  and  it  has  been  said  by  a  distinguished  text-writer  ^  that 
the  procuring  of  an  abortion  is  an  indictable  offence  at  common 

1  liloody  V.  P.,  20  111.  315 ;  P.  v.  Parshall,  6  Park.  (N.  Y.)  C.  R.  129. 

2  S.  V.  Farrar,  41  N.  H.  53.  See  also  C.  v.  Nickerson,  5  All.  (Mass.) 
519,  M.  75 ;  and  ante,  §  197. 

3  Pveg.  V.  Prince,  13  Cox  C.  C.  138 ;  S.  v.  Ruhl,  8  la.  447 ;  ante,  §  56. 

4  4  Bl.  Com.  219  ;  Click  r.  S.,  3  Tex.  282. 

5  S.  V.  Rollins,  8  N.  li.  550. 
^  Click  V.  S.,  ante. 

T  IMoody  V.  P.,  20  111.  315;  Payson  v.  Macomber,  3  All.  (:\Iass.)  69; 
Hadderi  v.  P.,  25  N.  Y.  373.     See  also  Abduction,  False  Imprisonment. 

8  3  Chitty  Cr.  Law,  557. 

9  2  Whart.  Cr.  Law,  §  1220. 


Skct.  200.]  ABORTION.  191 

law,  it  is  found  upon  examination  that  the  precedent  referred 
to  is  for  an  assault,  and  the  case  ^  relied  upon  as  an  authority 
is  also  for  an  assault.  The  better  opinion  is,  that  the  procuring 
of  an  abortion  is  not,  as  such,  an  indictable  offence  at  common 
law,  although  the  acts  done  in  pursuance  of  such  a  purpose  do 
undoubtedly  amount  to  other  offences  which  the  common  law 
recognizes  and  punishes.  But  the  procuring  of  an  abortion 
with  tlie  consent  of  the  mother  before  she  is  quick  with  child 
is  not,  at  common  law,  even  an  assault,  the  consent  of  the 
mother  effectually  doing  away  with  an  element  necessary  to 
the  constitution  of  an  assault.^  The  procuring  it  after  that 
time  is  a  misdemeanor,  and  may  be  a  murder.^ 

Under  a  statute  punishing  the  procurement  of  an  abortion 
"  by  means  of  any  instrument,  medicine,  drug,  or  other  means 
whatever,"  the  indictment  charging  that  the  defendant  beat  a 
certain  pregnant  woman  with  intent  to  cause  her  to  miscarry, 
it  was  held  that  the  case  was  not  made  out  by  proof  that  the 
defendant  beat  her,  and  caused  her  thereby  to  miscarry,  unless 
the  beating  was  with  that  intent.* 

This  view  of  the  common  law  doubtless  led  to  such  statutes 
as  prevail  in  Massachusetts,  Vermont,  and  New  York,  and 
probably  most  of  the  other  States,  punishing  the  procurement 
of  a  miscarriage,  or  the  attempt  to  procure  it,  under  which  it 
is  held  that  the  consent  of  the  woman  is  no  excuse,  and  that 
the  crime  may  be  committed  though  the  child  be  not  quick. ^ 

^  C.  V.  Demain,  G  Pa.  L.  J.  29.  A  later  casein  Pennsylvania,  however, 
holds  that  an  indictment  will  lie  :  Mills  v.  C,  13  Pa.  631,  M.  536.  See 
Met.  Slagle  v.  S.,  83  N.  C.  630. 

2  Mitchell  V.  C,  78  Ky.  204 ;  Smith  v.  S.,  33  Me.  48 ;  C.  v.  Parker,  9 
(Mass.)  263 ;  S.  v.  Cooper,  22  X.  J.  L.  52. 

*  Reg.  V.  West,  2  C.  &  K.  784  ;  Smith  v.  S.,  aiitey  C.  v.  Parker,  aniej 
S.  V.  Cooper,  ante;  Evans  r.  P.,  49  N.  Y.  86. 

4  Slattery  v.  P.,  76  111.  217.     See  also  ante,  §  32. 

5  S.  V.  Magnell,  3  Penne.  (Del.)  307,  51  Atl.  606;  S.  v.  Alcorn,  7  Ida. 
599,  64  P.  1014  ;  Lamb  v.  S,  67  Md.,  524,  10  Atl.  208,  298 ;  C.  v.  Wood, 
11  Gray  (Mass.),  85 ;  P.  v.  Davis,  56  N.  Y.  95 ;  Cobel  v.  P.,  5  Park.  (N.Y.) 
C.  R.  348  ;  Mills  V.  C,  13  Pa.  631,  :\I.  538  ;  S.  v.  Howard,  32  Vt.  380;  contra: 
Sullivan  v.  S.  (Ga.),  48  S.  E.  949  (semble).  See  also  Willey  v.  S.,  46  Ind. 
363;  S.  V.  Fitzgerald,  49  la.  260;  S.  v.  Van  Ilouten,  37  Mo.  357;  S.  v. 
Murphy,  3  Dutch.  (N.  J.)  112. 


192  CRIMINAL  LAW.  [Sect.  201. 

And  under  the  New  York  statute  the  woman  who  takes  drugs 
to  effect  a  miscarriage  is  equally  guilty  with  the  person  who 
administers  them  to  her.^  Yet  she  is  not  strictly  an  accom- 
plice, the  law  regarding  her  rather  as  a  victim  tlian  a  perpe- 
trator^^ 

Upon  general  principles,  as  we  have  already  seen,  an  at- 
tempt to  commit  a  statutory  misdemeanor  or  felony  is  itself  a 
misdemeanor,  indictable  and  punishable  as  such  at  common 
law.2 

LASCIVIOUSNESS. 

§  201.  Lasciviousness  is  punishable  at  common  law,  and  em- 
braces indecency  and  obscenity,  both  of  word  and  act ;  as  the 
indecent  exposure  of  one's  person  in  a  public  place,*  or  the  use 
of  obscene  language  in  public.^  It  is  immaterial  how  many  or 
how  few  may  see  or  hear,  if  the  act  be  done  in  public  where 
many  may  see  or  hear.^  And  the  permission  of  those  for 
whose  decent  appearance  one  is  responsible  to  go  about  pub- 
licly in  a  state  of  nudity  has  been  held  to  be  lewdness  on  the 
part  of  the  person  so  permitting,^  Under  statutes  against 
lascivious  behavior  and  lascivious  carriage,  —  substantially  the 
same,  —  it  seems  to  be  the  law  that  the  offence  may  be  com- 
mitted by  exposure  of  the  person  and  solicitation  to  sexual 
intercourse,  without  the  consent  of  the  party  so  solicited, 
although  it  be  not  done  in  a  public  place.^  This,  however, 
would  not  amount  to  open  and  gross  lewdness.^  Lascivious 
cohabitation  implies  something  more  than  a  single  act  of  sexual 

1  Frazer  v.  P.,  54  Barb.  (N.  Y.)  306;  accord:  McCaughey  v.  S.,  156 
Ind.  41,  59  N.  E.  169. 

2  Dunn  V.  P.,  29  N.  Y.  523;  ante,  §  76. 
8  Ante,  §  18. 

4  S.  V.  Rose,  32  Mo.  560. 

5  S.  V.  Appling,  25  Mo.  315. 

6  Van  Houten  v.  S.,  46  N.  J.  L.  16;  S.  v.  MUlard,  18  Vt.  574;  ante, 
§15. 

T  Britain  v.  S.,  3  Humph.  (Tenn.)  203. 

8  Fowler  v.  S.,  5  Day  (Conn.),  81 ;  S.  ii.  Millard,  ante.  See  also  Dillard 
V.  S.,  41  Ga.  278;  C.  v.  Wardell,  128  Mass.  .52. 

9  C.  V.  Catlin,  1  Mass.  8;  but  see  C.  i'.  Wardell,  128  Mass.  52,  53. 


Sects.  202,  203.]   LASCIVIOUSNESS.  — FORNICATION.  — SODOMY.    193 

intercourse  ;  ^  it  must  be  shown  that  the  parties  lived  together 
as  man  and  wife,  not  being  legally  married.^ 

FORNICATION. 

§  202.  Fornication  is  the  unlawful  sexual  intercourse  of  an 
unmarried  person  witli  a  person  of  the  opposite  sex,  whether 
married  or  unmarried.  In  some  States  such  intercourse  with 
a  married  person  is  made  adultery.  Like  adultery,  it  was 
originally  of  ecclesiastical  cognizance  only ;  and  without  cir- 
cumstances of  aggravation,  which  will  make  it  part  and  parcel 
of  another  offence,  it  is  not  believed  to  have  been  recognized 
as  an  offence  at  common  law  in  this  country.^  The  statutes 
of  the  several  States,  however,  generally,  if  not  universally, 
make  it  punishable  under  certain  circumstances  of  openness 
and  publicity,  which  perhaps  would  make  it  indictable  if  there 
were  no  statute.*  And  where  it  is  indictable,  it  has  been  fre- 
quently held  that,  on  failure  to  prove  the  marriage  of  the  party 
indicted  for  adultery,  he  may  be  found  guilty  of  fornication,  if 
the  circumstances  alleged  and  proved  would  warrant  a  convic- 
tion on  an  indictment  for  fornication. ^ 

SODOMY. 

§  203.  Sodomy,  otherwise  called  buggery,  bestiality,  and  the 
crime  against  nature,  is  the  unnatural  copulation  of  two  per- 
sons with  each  other,  or  of  a  human  being  with  a  beast.''    This 

1  Penton  v.  S.,  42  Fla.  560,  28  So.  774 ;  Lawson  y.  S.,  116  Ga.  571,  42 
S.  E.  752;  S.  v.  Marvin,  12  la.  499;  S.  v.  Cassida,  67  Kan.  171,  72  P. 
522 ;  C.  V.  Calef,  10  Mass.  153  ;  S.  v.  Miller,  42  W.  Va.  215,  24  S.  E.  882. 

2  Primer  y.  C,  82  Ya.  115. 

8  S.  V.  Pvahl,  33  Tex.  76;  S.  v.  Cooper,  16  Vt.  551. 

4  Terr.  v.  Whitcomb,  1  ISIont.  359;  S.  v.  Moore,  1  Swan  (Tenn.), 
136  ;  S.  V.  Cooper,  16  Vt.  531  ;  Anderson  w.  C,  5  Rand.  (Va.)  627 ;  4  Bl. 
Com.  65,  and  note  by  Chitty;  contra  :  Musfelt  v.  S.,  64  Neb.  445,  90  N. 
W.  237.  Former  good  reputation  for  chastity  is  no  defence  :  Boatwright 
V.  S.,  42  Tex.  Cr.  R.  442,  60  S.  W.  760.    See  also  Cook  v.  S.,  11  Ga.  53. 

6  S.  V.  Cowell,  4  Ired.  (N.  C.)  231;  Resp.  v.  Roberts,  2  Dall.  (Pa.)  124. 
See  also  C.  v.  Squires,  97  Mass.  59 ;  S.  v.  Cox,  2  Taylor  (N.  C),  165. 

6  1  Hawk.  P.  C.  (8th  ed.),  357. 

13 


194  CRIMINAL  LAW.  [Sect.  203. 

crime  was  said  to  have  been  introduced  into  England  by  the 
Lombards,  and  hence  its  name,  from  the  Italian,  bugarone}  It 
may  be  committed  by  a  man  with  a  man,  by  a  man  with  a 
beast; 2  or  by  a  woman  with  a  beast,  or  by  a  man  with  a 
woman,  — his  wife,  in  which  case,  if  she  consent,  she  is  an 
accomplice.^  But  the  act,  if  between  human  beings,  must  be 
per  anum,  and  the  penetration  of  a  child's  mouth  docs  not 
constitute  the  offence.*  If  both  parties  consent,  both  are  guilty, 
unless  one  be  under  the  age  of  discretion. ^  Under  the  old 
common  law,  both  penetration  and  emission  were  necessary  to 
constitute  the  offence  ;*'  but  since  the  statute  of  9  Geo.  IV,  c. 
31,  §  18,  penetration  only  is  necessary.'  Before  this  statute, 
copulation  with  a  fowl  was  not  an  offence,  as  a  fowl  is  not  a 
"  beast "  ;  but  this  statute  covers  copulation  with  any  "  animal." 
It  was  always  regarded  as  a  very  heinous  offence,  and  was 
early  denounced  as  "  the  detestable  and  abominable  crime 
amongst  Christians  not  to  be  named,"  and  was  a  felony  pun- 
ishable with  death.8  g^t  though  it  is  still  a  felony  in  most  of 
the  States,  it  is,  we  believe,  nowhere  capitally  punished.  In 
some  of  the  States,  where  there  is  no  crime  not  defined  in  the 
code,  it  seems  to  have  been  purposely  dropped  from  the  cate- 
gory of  crimes.9     The  origin  of  the  term  "  sodomy  "  may  be 

1  Coke,  3d  Inst.  58. 

2  A  fowl  is  now  held  in  England  to  be  a  beast :  Reg.  v.  Brown,  24  Q. 
B.  D.  357. 

3  Reg.  V.  Jellyman,  8  C.  &  P.  604. 

4  Rex  V.  Jacobs,  R.  &  R.  C.  C.  331;  P.  v.  Boyle,  116  Cal.  658,  48  P. 
800;  Prindlev.  S.,  31  Tex.  Cr.  R.  551,21  S.  W.  360;  contra,  by  stat- 
ute :  Herring  v.  S.,  119  Ga.  709,  46  S.  E.  876  ;  Honselman  v.  P.,  168  111. 
172,  48  N.  E.  304;  S.  v.  McGruder  (la.),  101  N.  W.  646. 

5  Reg.  V.  Allen,  1  Den.  C.  C.  364 ;  Coke,  3d  Inst.  58. 

«  Rex  V.  Duffin,  1  R.  &  R.  C.  C.  365;  P.  v.  Hodgkins,  94  Mich.  27,  53 
N.  W.  794;  contra:  White  v.  C,  24  Ky.  L.  R.  2349,  73  S.  W.  1120 ;  S.  v. 
Vicknair,  52  La.  Ann.  1921,  28  So.  273. 

T  Rex  V.  Reekspear,  1  Moo.  C.  C.  342. 

8  1  Hawk  P.  C.  (8th  ed.)  357. 

®  But  few  cases  occur  in  the  reports.  C.  v.  Snow,  111  Mass.  411; 
Lambertson  v.  P.,  5  Park.  (N.  Y.)  C.  R.  200;  C.  v.  Thomas,  1  Va.  Cas. 
307.    In  Fennell  v.  S.,  32  Tex.  378,  it  is  held  by  a  divided  opinion  not 


Sect.  203.]  SODOMY.  195 

found  in  the  nineteenth  chapter  of  Genesis.  The  practice  was 
first  denounced  by  the  Levitical  law  as  a  heathen  practice, 
and  amongst  non-Christian  nations,  at  the  present  day,  it  is 
not  generally  regarded  as  criminal. 

to  be  an  offence,  on  the  ground  that  it  is  not  defined  by  statute,  no  unde- 
fined offence  being  punishable  there.  See  also  Estes  i*.  Carter,  10  la. 
400;  Davis  v.  S.,  3  H.  &  J.  (Md.)  154. 


196  CRIMINAL  LAW.  [Sects.  204,  205. 


CHAPTER   VI. 

OFFENCES    AGAINST    THE    PERSON. 


205.  Assault. 

217.  Mayhem. 

218.  Homicide. 


§  240.   False  Imprisonment. 
241.   Rape. 
245.    Robbery. 


§  204.  The  principal  offences  against  the  person  may  be 
divided  into  three  classes:  first,  an  injury  to  the  person, 
ranging  in  enormity  from  a  simple  assault  to  homicide ; 
secondly,  a  false  imprisonment  of  tlie  person ;  and,  thirdly, 
composite  crimes,  in  which  a  wrongful  act  is  committed  by 
the  use  of  violence  to  the  person,  such  as  robbery  and  larceny 
from  the  person,  and  rape. 

ASSAULT. 

§  205.  Strange  as  it  may  seem,  there  is  no  definition  of 
an  assault  which  meets  unanimous  acceptance.  The  more 
generally  received  definition  is  that  of  Hawkins,^  to  wit: 
"An  attempt  or  offer  with  force  and  violence  to  do  a  corporal 
hurt  to  another."  We  have  already  seen,^  that  to  constitute 
an  attempt  there  must  be  some  overt  act  in  part  execution  of 
a  design  to  commit  a  crime  ;  and  upon  the  theory  that  an 
assault  is  but  an  attempt,  it  is  held  that  a  mere  purpose  to 
commit  violence,  unaccompanied  by  any  effort  to  carry  it  into 
immediate  execution,  is  not  an  assault.  The  violence  which 
threatens  the  "corporal  hurt"  or,  as  it  is  frequently  ex- 
pressed, "  personal  injury,"  or  "  bodily  harm,"  must  be  set  in 
motion.^     It  is  the  beginning  of  an  act,  or  of  a  series  of  acts, 

1  1  P.  C.  (8th  ed.)  110. 

2  Ante,  §  183. 

8  P.  V.  Yslas,  27  Cal.  630 ;  Smith  v.  S.,  39   Miss.  521. 


Sects.  206,  207.] 


ASSAULT.  197 


which,  if  consummated,  will  amount  to  a  battery,  which  is 
the  unlawful  application  of  violence  to  the  person  of  another. 
One,  therefore,  who,  within  such  proximity  to  another  that  he 
may  inflict  violence,  lifts  his  hand,  either  with  or  without  a 
weapon,  with  intent  to  strike,  or  lifts  a  stone  with  intent  to 
hurl  it,  or  seizes  a  loaded  gun  with  intent  to  fire  it,  is,  upon 
all  the  authorities,!  guilty  of  an  assault. 

The  better  view  would  seem  to  be  that  an  assault  includes 
any  putting  of  another  in  reasonable  fear  of  immediate 
personal  violence.^ 

§  206.  Battery.  —  A  battery  is  the  unlawful  touching  of 
another,  or  of  the  dress  worn  by  another,  with  any  the  least 
violence.3  An  act  which  begins  as  an  assault  ordinarily  ends 
as  a  battery,  and  merges  in  it ;  and  since  on  an  indictment 
for  battery  the  defendant  may  be  found  guilty  of  a  simple 
assault,  it  is  an  invariable  rule  to  indict  for  assault  aud 
battery.  For  this  reason,  the  two  crimes  are  not  carefully 
distinguished ;  the  general  name  assault  being  applied  in- 
differently to  both.  No  useful  end  would  be  served  by  insist- 
ing on  a  distinction  not  made  by  the  courts.  In  the  following 
discussion,  therefore,  the  term  assault  will  be  used  indiffer- 
ently to  designate  true  assault  and  the  completed  battery. 

§  207.  Authority.*  —  The  force  to  constitute  an  assault 
must  be  unlawful.  A  parent,  or  other  person  standing  in  loco 
parentis,  may  use  a  reasonable  amount  of  force  in  the  cor- 
rection of  his  child.^  So  a  schoolmaster  may  correct  his 
pupil ;  or  a  master  his  apprentice  ;  ^  but  the  master's  authority 

1  U.  S.  V.  Hand,  2  Wash.  (U.  S.  C.  Ct.)  43.5,  Fed.  Cas.  No.  15,297 ; 
accord:  S.  v.  Morgan,  3  Ired.  (N".  C.)  186  ;  Higgiubotham  i-.  S.,  23  Tex. 
574.  The  Penal  Code  of  Texas  defines  an  assault  as  "  Any  attempt  to 
commit  a  battery,  or  any  threatening  gesture,  showing  in  itself,  or  by 
words  accompanying  it,  an  immediate  intention,  coupled  with  an  ability, 
to  commit  a  battery."     Art.  476. 

2  Steph.  Dig.  Cr.  Law,  art.  241 ;  Reg.  v.  St.  George,  9  C.  &  P.  483 ; 
S.  V.  Davis,  1  Ired.  (N.  C.)  125 ;  post,  §§  212,  213. 

3  Steph.  Dig.  Cr.  Law,  art.  241 ;  Reg.  v.  Day,  1  Cox  C.  C.  207. 

4  A  nte,  §  62. 

6  S.  V.  Alford,  68  N.  C.  322;  Thompson  v.  S.  (Tex.),  80  S.  W.  623. 
«  Gardner  v.  S.,  4  Ind.  632. 


198  CRIxMINAL  LAW.  [Sect.  208. 

is  personal,  and  cannot  be  delegated  to  another,  as  can  that 
of  a  parent.^  An  officer  may  also  use  such  force  in  making 
an  arrest ;  ^  and  so,  generally,  may  all  persons  having  the 
care,  custody,  and  control  of  public  institutions,  and  charged 
with  the  duty  of  preserving  order  and  preventing  their  wards 
from  self-injury,  such  as  the  superintendents  of  asylums 
and  almshouses.^  So  the  conductor  of  a  railway  train  may 
forcibly  put  from  his  train  any  person  guilty  of  such  mis- 
conduct as  disturbs  the  peace  or  safety  of  the  other  passengers, 
or  violates  the  reasonable  orders  of  the  comi)any.*  And  so 
may  the  sexton  of  a  church^  in  a  like  way  protect  a  lawful 
assembly  therein.  This  right,  however,  must  be  exercised 
with  discretion,  and  must  not,  in  degree  or  in  kind  of  force, 
surpass  the  limits  of  necessity  and  appropiiatencss.^  The 
modern  tendency  is  to  construe  strictly  against  the  person 
using  the  force.  It  was  formerly  held  that  a  husband  might 
correct  his  wife  by  corporal  chastisement ;  but  this  is  now 
denied  to  be  law  in  some  of  the  States,  and  it  is  doubtful  if 
the  practice  would  be  upheld  by  the  courts  of  any  State.^ 
The  mere  relationship  of  master  and  servant,  the  former 
not  being  charged  with  any  duty  of  education  or  restraint, 
will  not  now,  whatever  may  have  been  the  law  heretofore, 
authorize  the  use  of  force.^ 

§  208.  Consent.  —  When  a  person  sui  juris,  without  fraud 
or  coercion,  consents  to  the  application  of  force,  certainly,  if 
the  force  be  such  as  may  be  lawfully  consented  to,  there  can 
be  no  assault.     It  has  been  accordingly  held  that,  if  a  woman 

1  P.  V.  Phillips,  1  Wheeler  C.  C.  (X.  Y.)  155. 

2  Ante,  §  59  et  seq. ;  Golden  v.  S.,  1  S.  C.  292. 

3  S.  V.  Hull,  34  Conn.  132. 

4  S.  V.  Goold,  53  Me.  279 ;  P.  v.  Caryl,  3  Park.  C.  C.  (N.  Y.)  326. 

5  C.  V.  Dougherty,  107  Mass.  213. 

6  C.  I'.  Randall,  4  Gray  (Mass.),  36. 

7  Fulgham  v.  S.,  46  Ala.  143 ;  Moody  v.  S.,  120  Ga.  868,  48  S.  E. 
340;  S.  V.  Washington,  101  La.  443,  29  So.  55;  C.  v.  McAfee,  108  Mass. 
4.58;  S.  ('.  Ross,  26  N.  J.  L.  224;  S.  v.  Oliver,  70  X.  C.  60,  M.  399; 
Gorman  v.  S.,  42  Tex.  221.  See  also  Mr.  Green's  note  to  C.  v.  Barry, 
2  Green's  Cr.  Law  Rep.  285. 

8  Matthews  v.  Terry,  10  Conn.  455. 


Sect.  208.] 


ASSAULT.  199 


consents  to  her  own  dishonor/  or  to  the  use  of  instruments 
whereby  to  procure  an  abortion,^  or  one  requests  anotiier  to 
lash  him  with  a  whip,^  these  several  acts  do  not  constitute  as- 
saiilts,  because  they  are  assented  to  by  the  parties  upon  whom 
the  force  is  inflicted ;  and  the  same  has  been  held  where  two 
men  privately  spar  together.* 

But  consent  to  the  doing  of  one  kind  of  physical  act  does 
not  authorize  the  doing  of  another,  and  the  second  one  is  an 
assault.  Thus  consent  to  eat  an  apple  is  not  consent  to  have 
administered  poison  concealed  in  the  apple  ;^  so  consent 
to  intercourse  is  not  consent  to  the  administration  of  animal 
poison.^ 

Again,  as  has  been  seen,^  no  one  has  a  right  to  consent  to 
an  act  which  is  liable  to  cause  severe  bodily  harm  to  himself 
or  another,  or  to  lead  to  a  breach  of  the  peace.  Though  con- 
sent in  such  a  case  may  be  shown  to  negative  a  putting  in 
fear,  yet  if  there  has  been  an  actual  battery  the  consent  will 
be  no  excuse.  So,  if  two  men  publicly  engage  in  a  fight  with 
fists,  each  may  be  indicted  for  an  assault  and  battery .^ 

In  the  class  of  cases  just  discussed,  the  consent  is  not  rec- 
ognized so  as  to  make  the  touching  any  the  less  a  battery  be- 
cause the  common  law  regards  such  transactions  as  being  too 
dangerous  to  public  peace  and  the  welfare  of  its  citizens  at 
large  to  allow  it.  A  similar  question  arises  under  the  statutes 
forbidding  intercourse  with  girls  under  the  age  of  consent. 
If  the  act  is  completed  the  consent  is  admittedly  no  defence. 

1  Reg.  V.  Meredith,  8  C.  &  P.  589  ;  P.  v.  Bransby,  32  N.  Y.  525 ;  Smith 
V.  S.,  12  O.  St.  466. 

2  C.  I'.  Parker,  9  Met.  (Mass.)  263;  S.  v.  Cooper,  2  Zabr.  (X.  J.)  52. 
8  S.  V.  Beck,  1  Hill  (S.  C),  363,  M.  68. 

*  Reg.  V.  Young,  10  Cox  C.  C.  371. 

5  C.  V.  Stratton,  114  Mass.  303,  C.  155. 

6  Reg.  V.  Clarence,  22  Q.  B.  D.  23,  M.  514 ;  Reg.  v.  Bennett,  4  F.  &  F. 
1105. 

7  Ante,  §  23. 

8  Reg.  V.  Lewis,  1  C.  &  K.  419;  S.  v.  Lonon,  19  Ark.  577;  C.  v.  Col- 
berg,  119  Mass.  3.50,  C.  160  ;  S.  v.  Underwood,  57  Mo.  40.  See,  however, 
contra,  Duncan  v.  C,  6  Dana  (Ky.),  295;  Champer  v.  S.,  14  0.  St.  4o7, 
M.  69. 


200  CRIMINAL   LAW.  [Sect.  208. 

A  more  difficult  question  arises  when  the  indictment  is  for 
assault  with  intent  to  commit  the  statutory  rape.  In  this  case 
some  courts,  construing  the  statute  as  covering  only  the  act  of 
intercourse,  have  held  that  where  the  indictment  is  for  an  as- 
sault the  consent  of  the  girl  makes  the  act  permitted  and  hence 
not  criminal,  and  the  fact  that  had  the  intercourse  taken  place 
the  consent  would  have  been  no  defence  is  immaterial.^  On 
the  other  hand,  in  most  of  the  States  the  consent  is  held  no  de- 
fence. In  some  jurisdictions  this  is  put  on  the  ground  that  as 
the  statute  has  made  consent  to  the  intercourse  impossible, 
therefore  any  act  in  the  nature  of  an  attempt  must  be  crimi- 
nal as  an  assault,^  a  view  that  would  seem  doubtful  on  sound 
principle.  In  other  jurisdictions  the  same  result  has  been 
reached  on  the  ground  that  it  was  the  purpose  of  the  statute 
to  make  invalid  the  consent  of  the  girl,  not  only  to  the  act  of 
intercourse,  but  to  any  act  in  furtherance  thereof  which  would 
be,  without  consent,  sufficient  to  amount  to  an  assault.^ 

Another  class  of  cases  is  where  the  defendant  because  of  his 
position  is  able  to  dominate  the  will  of  the  person  assaulted  so 
that  no  actual  resistance  is  offered,  as  where  a  female  pupil  of 
tender  years,  by  the  dominating  power  of  her  teacher,  is  in- 
duced, without  resistance,  to  permit  improper  liberties  to  be 
taken.^  It  is  well  settled  that  this  is  an  assault.  For  consent 
obtained  by  threats  of  such  a  character  as  to  overpower  the 
will  is  no  consent.^     Consent  is  the  affirmative  act  of  an  un- 

1  Reg.  V.  Read,  2  C.  &  K.  957;  Reg.  v.  Banks,  8  C.  &.  P.  574;  S.  v. 
Pickett,  11  Nev.  255;  Smith  v.  S.,  12  O.  St.  4G6;  Ilardiu  v.  S.,  39  Tex. 
Cr.  Rep.  426,  46  S.  W.  803. 

2  P.  V.  Stewart,  85  Cal.  174,  24  P.  722;  T.  v.  Keyes,  5  Dak.  244,  38  N. 
W.  440;  S.  V.  Grossheim,  79  la.  75,  44  N.  W.  541  (semble);  Hays  v.  P., 
1  Hill  (X.  y.),  351. 

3  Murphy  v.  S.,  120  Ind.  115,  22  N.  E.  106  (overruling  Stephens  v.  S., 
107  Ind.  185,  8  N.  E.  94);  S.  v.  Roosnell,  143  INIass.  32,  8  N.  E.  747;  P. 
V.  McDonald,  9  Mich.  150;  P.  v.  Courier,  79  Mich.  366,  44  N.  W.  571; 
Davis  V.  S.,  31  Neb.  247,  47  N.  W.  854 ;  S.  v.  Johnston,  76  N.  C.  209 ;  S. 
V.  Wheat,  63  Vt.  673,  22  Atl.  720  {<^emhle)  ;  Fizell  ;;.  S.,  25  Wis.  364. 

<  Reg.  V.  Nichol,  R.  &  R.  130;  Reg.  r.  Lock,  12  Cox  C.  C.  244. 

5  Reg.  V.  Saunders,  8  C.  &  P.  265;  Reg.  v.  Williams,  8  C.  &  P.  286; 
Reg.  V.  Hallett,  9  C.  &  P.  748;  Reg.  v.  Woodhurst,  12  Cox  C.  C.  443;  C. 
V.  Burke,  105  Mass.  376;  P.  v.  Quin,  50  Barb.  (X.  Y.)  128. 


Sects.  209,  210.] 


ASSAULT. 


201 


._miji^^s,,:thei^efoi:fi^toJig^Jsti^ 

mere  submission,  as  of  an  idiot,^  or  of  a  child,^ 
or  of  a  person  asleep,*^  or  otherwise  unconscious,  or  unable  to 
understand  what  is  going  on,  is  not  equivalent  to  consent. 

§  209.  Consent  Secured  by  Fraud.  —  In  some  cases,  it  has 
been  said  that  there  may  be  an  assault  when  the  injured  party 
apparently  consents  to  the  unlawful  act,  as  where  a  female 
patient  is  deceived  by  a  physician  into  consenting  that  im- 
proper liberties  should  be  taken  with  her.^  These  cases  may 
be  rested  either  on  the  ground  that  there  was  no  intelligent 
assent  to  the  act  done,  or  on  the  ground  that  the  fraud  vitiates 
the  consent. 

§  210.  Degree  of  Force.  Mode  of  Application. —  The  degree 
of  force  used  is  immaterial,  provided  it  be  unlawful.  The 
least  intentional  touching  of  the  person,  or  of  that  which 
so  appertains  to  the  person  as  to  partake  of  its  immunity,  if 
done  in  anger,  or  rudely,  or  insultingly,  is  sufficient.  Thus 
to  embrace  ^  or  kiss  "^  a  woman  against  her  will ;  so  to  throw 
water  upon  the  clothes,^  to  spit  upon,  push,  forcibly  detain, 
falsely  imprison,  and  even  to  expose  to  the  inclemency  of  the 
weather,  are  all  acts  which  have  respectively  been  held  to  con- 
stitute an  assault.^  So  any  forcible  taking  of  property  from 
the  possession  of  another,  by  overcoming  the  slightest  resist- 


131 
317, 


Reg.  r.  Lock,  12  Cox  C.  C.  244. 

Reg.  V.  McGavaren,  6  Cox  C.  C.  64;  Reg.  v.  Fletcher,  8  Cox  C.  C. 
Reg.  V.  Woodhurst,  ante.     Compare  Reg.  v.  Conuoliy,  26  U.  C.  Q.  B. 


4 
6 

Moo 


Reg.  V.  Lock,  ante. 
Reg.  V.  Mayers,  12  Cox  C.  C.  311. 

Reg.  V.  Case.  4  Cox  C.  C.  220,  1  Den.  C.  C.  580;  Rex  v.  Rosinski,  1 
10,  M.  74;  Bartell  v.  S.,  106  Wis.  342,  82  N.  W.  142. 
6  Balkum  v.  S.,  115  Ala.  117,  22  So.   532;  Stripling  v.  S.   (Tex.),  80 
S.  W.  376. 

T  Chambless  v.  S.  (Tex.),  79  S.  W.  577. 
8  P.  V.  McMurray,  1  Wheeler  C.  C.  (X.  Y.)  62. 

'  1  Russ.  on  Crimes  (5th  ed.),  957;  Long  v.  Rogers,  17  Ala.  540; 
S.  V.  Philley,  67  Ind.  304;  C.  v.  McKie,  1  Gray  (Mass.),  61;  S.  v.  Baker, 
65  N.  C.  332;  Wilson  v.  S.  (Tex.),  74  S.  W.  315. 


202  CRIMINAL  LAW.  [Sect.  211. 

ance,  is  an  assault.^  Nor  need  the  application  of  force  be  direct. 
If  the  force  unlawfully  set  in  motion  is  communicated  to  tlie 
person,  whether  directly,  by  something  attached  to  the  person, 
as  a  cane  or  a  cord ,2  or  indirectly,  as  where  a  squib  is  thrown 
into  a  crowd,  and  is  tossed  from  one  to  another,  it  is  sufficient.^ 
But  the  mere  lifting  of  a  pocket-book  from  the  pocket  of  another, 
or  snatching  a  bank-bill  from  his  hand,  without  overcoming 
any  resisting  force,  is  not  an  assault.^  But  setting  a  dog  or 
a  crowd  upon  another,  or  urging  a  horse  against  him,^  or 
driving  against  the  carriage  in  which  he  is  seated,  or  striking 
the  horse  he  is  riding  or  driving,  in  either  case  to  his  injury, 
will  constitute  an  assault.^ 

§  211.  Mode  of  Application. —  It  was  formerly  held  that  to 
put  a  deleterious  drug  into  the  food  of  another,  if  it  be  eaten 
and  take  effect,  was  an  assault^  Upon  subsequent  consider- 
ation, it  was  held  in  England  that  the  direct  administration  of 
a  deleterious  drug,  without  force,  though  ignorantly  taken,  is 
not  an  assault,^  —  overruling  the  previous  case.  A  contrary 
result,  however,  has  been  reached  in  this  country  by  a  court 
of  high  authority,  and  with  the  reasoning  of  the  two  just  cited 
cases  before  it,  —  the  doctrine  of  the  earlier  case  being  ap- 
proved; and  it  is  said  that  it  cannot  be  material  whether  the 
force  set  in  motion  be  mechanical  or  chemical,  or  whether  it 
acts  internally  or  externally.^ 

1  S.  V.  Gorham,  55  N.  H.  152. 

2  S.  V.  Davis,  1  Hill  (S.  C),  46,  M.  527. 

3  Hill  V.  S.,  63  Ga.  578. 

4  C.  V.  Ordway,  12  Gush.  (Mass.)  270. 

«  S.  V.  Lewis,  4  Peiine.  (Del.)  332,  55  Atl.  3. 

6  1  Russ.  on  Crimes  (5th  ed.),  958;  2  Greenl.  Ev.,  §  81;  Kirlaud  v. 
S.,43  Ind.  146,  2  Green's  Cr.  Law  Rep.  706 ;  P.  v.  Moore,  50  llun  (N.  Y.), 
356,  3  N.  Y.  S.  159;  Johnson  v.  Tompkins,  1  Bald.  C.  Ct.  571,  Fed.  Cas. 
No.  7,416. 

■f  Reg.  V.  Button,  8  C.  &  P.  660. 

8  Reg.  0.  Hanson,  2  C.  &  K.  912,  and  notes. 

8  C.  V.  Stratton,  114  Mass.  303,  C.  155;  accord:  Carr  v.  S.,  135  Ind. 
1,  34  N".  E.  533  ;  S.  v.  Monroe,  121  N.  C.  677,  28  S.  E.  547.  So  the  com- 
munication of  venereal  disease :  Reg.  v.  Clarence,  22  Q.  B.  I).  23,  M. 
514;  Reg.  v.  Bemiet,  4  F.  &.  F.  1105;  Reg.  v.  Sinclair,  13  Cox  C  C.  28. 


Sect.  212.]  ASSAULT.  203 

The  detention  or  imprisonment  of  a  person  by  merely  con- 
fining him  in  a  place  where  he  happens  to  be,  as  by  lucking 
tlie  door  of  the  room  where  he  lies  asleep,  without  the  use  of 
any  force  or  fraud  to  place  him  there,  though  illegal,  does  not 
come  within  any  definition  of  assault,  although  the  language 
of  some  of  the  old  text-writers  is  broad  enough  to  cover  it. 
Mr.  Justice  BuUeri  says:  "Every  imprisonment  includes  a 
battery,  and  every  battery  an  assault,"  citing  Coke  upon 
Littleton,  253,^  where  it  is  merely  said  that  an  imprisonment 
is  a  "  corporall  dammage,  a  restraint  upon  personal  liberty,  a 
kind  of  captivity," — obviously  no  authority  for  the  proposi- 
tion that  every  imprisonment  includes  an  assault,  though  it  is 
authority  for  the  proposition  that  an  imprisonment  may  be  a 
cause  of  action.  It  is  probable  that  such  an  imprisonment  only 
as  follows  unlawful  arrest  was  in  the  mind  of  that  great  judge 
and  common  lawyer. ^  And  in  one  case  at  least  in  this  coun- 
try ^  tlie  court  has  gone  very  near  to  that  extent.  But  it 
would  not  bo  safe  to  say  that  such  is  the  law.  There  may  be 
an  imprisonment  by  words  without  an  assault.* 

§  212.  Putting  in  Fear. —  Altiiough  the  threatened  force  be 
not  within  striking  distance,  yet  if  it  be  part  of  an  act  or 
series  of  acts  which,  if  consummated,  will,  in  the  apprehension 
of  the  person  threatened,  result  in  the  immediate  application 
of  force  to  his  person,  this  will  amount  to  an  assault,  without 
battery  ;  as  where  one  armed  with  a  weapon  rushes  upon 
another,  but  before  he  reaches  him  is  intercepted  and  pre- 
vented from  executing  his  purpose  of  striking;^  or  rides  after 
him,  upon  horseback,  and  compels  him  to  seek  shelter  to 
escape  a  battery  ;'5  or  a  man  chases  a  woman  through  a  piece 
of  woods,  crying,  "  Stop ! "  until  she  arrives  at  a  house,  when 

1  N.  P.  22. 

2  See  note  to  Bridgman's  edition  of  Buller,p.  22.  In  Emmett  v.  Lyne, 
1  B.  &  P.  N.  K.  2.'5.3,  the  proposition  is  said  to  be  absurd,  and  tlie  fact 
that  it  is  unsupported  by  the  authority  of  Coke  or  Littleton  pointed  out. 

3  Smith  V.  S.,  7  Humph.  (Tenn.)  43. 

*  Bird  V.  Jones,  7  Q.  B.  742;  Pike  v.  Hanson,  9  N.  H.  491;  Johnson  v. 
Tompkins,  1  Bald.  C.  Ct.  571,  Fed.  Cas.  No.  7,416. 

s  Stephens  v.  Myers,  4  C.  &  P.  349;  S.  v.  Davis,  1  Ired.  (N.  C.)  125. 
6  Mortiu  V.  Shoppee,  3  C.  &  P.  373;  S.  v.  Sims,  3  Strobh.  (S.  C.)  137. 


204  CRIMINAL  LAW.  [Sect.  213. 


he  turns  back,  and  gives  up  the  chase.^     The  force  of  fear, 
taking  effect,  supplies  the  actual  violence.^ 

Mere  words,  however  menacing,  it  seems  long  to  have  been 
universally  agreed,  do  not  amount  to  an  assault.  Though  the 
speaking  of  the  words  is  an  act,  it  is  not  of  such  importance 
as  to  constitute  an  attempt  to  commit  violence.  It  is  not 
"  violence  begun  to  be  executed."  ^  Consequently,  mere  words 
can  never  constitute  a  justification  for  an  attack  on  the  person 
using  them.4  But  words  accompanied  by  acts  which  indicate 
an  intent  to  commit  violence,  and  threaten  application  of  force 
to  the  assaulted  party  unless  the  assailant  be  interrupted, 
constitute  an  assault.^ 

It  is  none  the  less  an  assault  where  the  words  of  the  de- 
fendant show  the  person  assailed  that  he  will  not  be  injured, 
if  the  price  of  his  safety  is  doing  something  he  is  under  no 
obligation  to  do  or  refraining  from  doing  something  that  he  has 
a  right  to  do ;  as  where  the  defendant  says  he  will  shoot  the 
person  assailed  if  the  latter  goes  any  further  along  a  public 
road,  or  if  he  does  not  give  up  certain  property.*^  On  the  other 
hand,  where  the  acts  of  the  defendant,  though  threatening,  are 
accompanied  by  words  that  show  there  is  no  present  danger,  no 
assault  has  been  committed  ;  as  where  the  defendant  shakes 
his  fist  and  says,  "  If  it  were  not  for  your  years  I  would  hit 
you."  '^ 

§  213.  Menace,  but  no  Intent  to  Commit  a  Battery.  —  It  has 
been  recently  held  that,  if  there  is  menace  of  immediate  per- 
sonal injury  such  as  to  excite  apprehension  in  the  mind  of  a 

1  S.  V.  Neely,  74  N.  C.  425. 

2  Balkum  v.  S.,  40  Ala.  671;  C.  v.  White.  110  Mass.  407,  C.  153. 
8  1  Hawk.  P.  C.  (8th  ed.)  110. 

4  S.  V.  Burton,  2  Penn.  (Del.)  472,  47  Atl.  619 ;  Rauck  v.  S.,  110  Ind. 
384,  11  N.  E.  450;  S.  v.  Leuhrsman,  123  la.  476,  99  N.  W.  140;  S.  v. 
Griffin,  87  Mo.  608. 

8  P.  V.  Yslas,  27  Cal.  630. 

«  Keefe  v.  S.,  19  Ark.  190;  S.  v.  Sears,  86  Mo.  169;  S.  v.  Morgan,  3 
Ire.  (N.  C.)  186  ;  S.  i-.  Home,  92  N.  C.  805;  U.  S.  v.  Myers,  1  Cranch 
C.  C.  310,  Fed.  Cas.  No.  15,845,  M.  506. 

•?  C.  V.  Eyre,  1  S.  &  R.  (Pa.)  347;  accord:  Tuberville  v.  Savage,  1 
Mod.  3,  M.  505  ;  S.  v.  Crow,  23  N.  C  375. 


Sect.  213.]  ASSAULT.  205 

reasonable  man,  although  the  person  threatening  intended 
not  to  injure,  as  where  one  person,  within  shooting  distance, 
points  an  unloaded  gun  at  another  knowing  that  it  is  not 
loaded,  it  is  an  assault,^  adopting  the  following  definition  of 
Mr.  Bishop :  ^  "  An  assault  is  any  unlawful  physical  force, 
partly  or  fully  put  in  motion,  creating  a  reasonable  apprehen- 
sion of  immediate  pliysical  injury."  And  this  seems  to  be  the 
doctrine  of  the  Scotch  law.^  But  no  well-considered  English 
case  has  gone  to  this  extent,  though  there  is  a  dictum  by  Mr. 
Baron  Parke  ^  which  supports  the  doctrine,  while  other  and 
later  cases  are  to  the  contrary.^  Nor  has  any  other  American 
case  been  found  which  goes  so  far.  On  the  contrary,  there 
are  several  which  seem  to  imply  that,  if  the  gun  be  not  loaded, 
it  may  be  shown  by  the  accused  in  defence.^  A  man  who 
menaces  another  with  corporal  injury,  with  intent  to  excite 
his  fears,  may  no  doubt  be  guilty  of  an  indictable  offence ; " 
but  whether  the  offence  constitutes  an  assault  must  be  con- 
sidered an  open  question.  An  intent  to  commit  one  crime 
cannot  make  a  party  guilty  of  committing  another  which  he 
did  not  intend,  unless  the  unintended  one  be  actually  com- 
mitted. Nor  does  it  follow,  because  a  person  may  be  justified 
in  availing  himself  of  force  to  avoid  or  ward  off  apprehended 
bodily  harm,  that  bodily  harm  is  intended.  Not  every  sup- 
posed assault  is  an  actual  one,  nor  does  it  seem  logical  or  just 
that  the  misapprehension  of  one  can  fix  criminal  responsibility 
upon  another,  though  the  latter  cannot  be  allowed  to  com- 

1  .C.  V.  White,  110  Mass.  407,  C.  153. 

2  2  Cr.  Law,  §  23. 

8  Morrison's  Case,  1  Brown  (Justic.  Rep.),  394. 

*  Reg.  0.  St.  George,  9  C.  &  P.  483. 

5  Blake  v.  Barnard,  9  C.  &  P.  626;  Reg.  v.  James,  1  C.  &  K.  530. 

^  See,  in  addition  to  the  cases  very  fully  collected  by  Mr.  Bishop,  2  Cr. 
Law,  §  32,  n.  1,  p.  20 :  Tarver  v.  S.,  43  Ala.  354;  Richels  v.  S.,  1  Sneed 
(Tenn.),  606;  Burton  v.  S.,  3  Tex.  App.  408.  See  also  Mr.  Green's  note 
to  C.  V.  White,  2  Green's  C.  L.  R.  2G9,  in  which  the  doctrine  of  the  prin- 
cipal case  is  denied,  and  the  cases  upon  whicli  it  is  supposed  to  rest  care- 
fully examined. 

7  S.  V.  Benedict,  11  Vt.  236. 


206  CRIMINAL  LAW.  [Sect.  214. 

plain  that  lie  has  suffered  the   consequences  of  a  misappre- 
hension to  which  he  has  given  rise.^ 

This  apparent  conflict  in  the  decisions  would  seem  to  be 
due  to  the  fact  that  the  word  assault  is  used  in  two  senses. 
It  may  mean  the  doing  of  certain  acts  that  will  culminate  in 
a  battery  :  thus  the  cases  mentioned  {ante,  §  212)  of  attempted 
injuries  where  the  assailant  was  stopped  before  actually  inflict- 
ing them  ;  so  the  case  where  mere  exposure  to  the  weather 
of  an  infant  child  was  held  an  assault  (Reg.  v.  Marcli,^  contra 
Reg.  V.  Renshaw  ^).  So  in  the  statement  that  every  battery 
includes  an  assault.  On  the  other  hand  the  defendant  may 
engage  in  a  course  of  action  which,  though  he  does  not  in  fact 
intend  it  to  culminate  in  a  battery,  produces  just  as  much 
terror  in  the  one  against  whom  it  is  directed,  and  creates  just 
as  much  public  disturbance.  In  this  sense  of  the  term  assault 
the  essence  of  the  wrong  is  the  injury  and  shock  to  the  feel- 
ings, as  the  battery  is  to  the  body.  In  this  sense  the  defend- 
ant both  intended  and  accomplished  his  crime.  The  view  of 
the  Massachusetts  court  prevails  in  several  other  jurisdictions.* 
On  the  other  hand  there  are  cases  that  hold  not  only  that  there 
is  an  assault  w^herever  there  is  an  attempted  battery,  i.  e.,  the 
first  meaning  of  the  term,  but  that  it  is  only  then  that  there 
can  be  an  assault.^ 

§  214.  Self-defence. s  —  As  every  person  has  the  right  to 
protect  himself   from  injury,  he   may,  when    assaulted,  use 

1  McKay  v.  S.,  44  Tex.  43,  a  case  in  which  the  point  is  elaborately 
considered  and  the  definition  of  Mr.  Bishop  disapproved ;  s.  c.  1  Am.  Cr. 
Rep.  46. 

2  1  C.  &  K.  496,  M.  507. 
8  2  Cox  C.  C.  285. 

*  S.  V.  Shepherd,  10  la.  126;  S.'v.  Acher.  8Kan.  App.  737,54  P.  927  ;  S. 
V.  Llewellyn,  93  Mo.  App.  469,  67  S.  W.  677;  P.  v.  Morehouse,  53  Hun 
(N.  Y.),  638,  6  N.  Y.  S.  763  ;  S.  v.  Sims,  3  Strobh.  (S.  C.)  137,  M.  509  ;  S.  v. 
Lightsey,  13  S.  C.  114,  20  S.  E.  975 ;  S.  v.  Smith,  2  Humph.  (Tenn.)  4.57. 

s  See  in  addition  to  the  cases  cited,  ante,  Chapman  v.  8.,  78  Ala.  463, 
M.  511 ;  P.  V.  Sylva,  143  Cal.  62,76  P.  814;  S.  v.  Burton,  2  Penne.  (Del.) 
472,  47  Atl.  619;  Klein  v.  S.,  9  Ind.  App.  365,  36  N.  E.  763;  S.  v.  God- 
frey, 17  Or.  300,  20  P.  625  ;  S.  v.  Hunt,  25  R.  I.  75,  54  Atl.  773  {semble). 

«  Ante,  §§  63  et  seq. 


Sect.  215.]  ASSAULT.  207 

against  his  assailant  such  reasonable  force  in  degree  and  kind 
as  may  be  necessary  and  appropriate  for  his  protection.  But 
if  he  go  beyond  that  limit,  he  becomes  in  his  turn  guilty  of 
assault.^ 

There  seems  to  be  no  necessity  for  retreating  or  endeavor- 
ing to  escape  from  the  assailant  before  resorting  to  any  means 
of  self-defence  short  of  those  which  threaten  the  assailant's 
life.  Nor  where  one  has  been  repeatedly  assaulted,  and  has 
reason  to  believe  that  he  will  be  again,  is  he  bound  to  seek 
the  protection  of  the  authorities.  He  may  resist  the  attack, 
and,  if  it  comes,  repel  force  with  force.^ 

But  before  the  assaulted  party  will  have  the  right  to  kill 
his  assailant,  he  must  endeavor  to  avoid  the  necessity,  if  it  can 
be  done  with  safety.  If,  however,  there  be  reasonable  appre- 
hension of  danger  so  imminent,  or  of  such  a  character,  that 
retreat  or  delay  may  increase  it,  then  the  assaulted  party  is 
justified  in  entering  upon  his  defence  at  once,  and  anticipating 
the  danger.^ 

Such  force  may  also  be  used  in  defence  of  those  whom  it  is 
one's  right  or  duty,  from  relationship  or  otherwise,  to  protect, 
and  indeed  in  defence  of  any  one  unlawfully  assailed.* 

§  215.  Defence  of  Property.'^  —  So  force  may  be  used  in 
defence  of  one's  house  or  bis  property.  A  man's  house  is  his 
castle,  for  defence  and  security  of  himself  and  his  family.  And 
if  it  is  attacked,  even  though  the  object  of  the  attack  be  to  as- 
sault the  owner,  he  may,  without  retreating,  meet  the  assailant 
at  the  threshold,  and  prevent  his  access  to  the  house,  if  need 
be,  even  by  taking  his  life.^  But  here,  as  in  other  cases  of 
self-defence,  if  the  intruder  be  driven  off,  following  and  beat- 
ing him  while  on  his  retreat  becomes  in  its  turn  an  assault.'^ 

1  Reg.  V.  Driscoll,  C.  &M.  214  ;  C.  v.  Ford,  5  Gray  (Mass.),  475  ;  Gal- 
lagher V.  S.,  3  Minn.  270;  S.  v.  Gibson,  10  Ired.  (X.  C.)  214. 

2  Gallagher  v.  S.,  ante;  Evers  v.  P.,  6  T.  &  C.  (N.  Y.)  156. 
8  S.  V.  Bohan,  19  Kan.  28.     See  zX&o  post,  Homicide. 

4  1  Bish.  New  Cr.  Law,  §  877. 
6  Ante,  §  66. 

6  Bohannon  v.  C,  8  Bush  (Ky.),  481 ;  Pond  v.  P.,  8  Mch.  150;  S.  v. 
Patterson,  45  Vt.  308 ;  S.  v.  Martin,  30  Wis.  216. 
'  S.  I'.  Conally,  3  Or.  69. 


208  CRIMINAL  LAW.  [Sects.  216,  217. 

And  in  defence  of  property  the  resistance  cannot  extend  to 
taking  the  life  of  the  intruder  where  there  is  a  mere  forcible 
trespass,  but  only,  if  at  all,  where  it  is  necessary  to  prevent 
the  felonious  taking  or  destruction  of  the  property .^ 

But  though  a  man  will  be  justified  in  such  extreme  measures 
in  defence  of  his  property,  this  can  only  be  to  prevent  it  from 
being  taken  away  from  him.  He  cannot  resort  to  any  force 
which  would  amount  to  an  assault  or  breach  of  the  peace  to 
recapture  his  stolen  property,^  as  the  preservation  of  the  public 
peace  is  of  greater  importance  than  the  status  of  any  man's 
private  property. 

§  216.  Accidental  Injury.  ^  —  If  a  person  doing  a  lawful  act  in 
a  proper  manner,  without  intent  to  harm  another,  sets  in  mo- 
tion a  force  which  by  accident  becomes  hurtful,  this  is  no  as- 
sault. Thus,  where  one  throws  an  object  in  a  proper  direction, 
and  by  striking  some  other  object  it  is  made  to  glance,  or  is 
driven  by  the  wind  out  of  its  course,  so  that  it  strikes  another, 
or  if,  without  being  turned  from  its  course,  it  hits  a  person  not 
known  to  be  in  the  vicinity  when  the  object  is  thrown,  the  act 
is  in  no  sense  criminal.*  So  one  is  not  guilty  of  a  criminal  as- 
sault when  the  horse  he  is  driving  runs  away  and  injures  a 
man,^  or  where  he  shoots  in  self-defence  and  accidentally  in- 
jures a  bystander.^ 

MAYHEM. 

§  217.  Mayhem  is  defined  by  Blackstone^  as  "the  violently 
depriving  another  of  the  use  of  such  of  his  members  as  may 
render  him  the  less  able,  in  fighting,  either  to  defend  himself 
or  to  annoy  his  adversary."     Amongst  these  members  were 


1  1  East  P.  C.  402  ;  1  Bish.  New  Cr.  Law,  §  875;  Carroll  r.  S.,  23  Ala. 
28 ;  S.  I'.  Patterson,  45  Vt.  308. 

2  Hendrix  v.  S.,  50  Ala.  148;  3  Bl.  Com.  4.    Compare  ante,  §§  66,  168. 
8  Ante,  §§  28  et  seq. 

4  Rex  V.  Gill,  1  Str.  190,  M.  526;  1  Paiss.  on  Crimes  (5th  ed.),  962. 

6  Dickenson  v.  S.,  24  Tex.  App.  121,  5  S.  W.  648. 

6  Howard  v.  C,  26  Ky.  L.  R.  465,  81  S.  W.  689  (semUe). 

'  4  Bl.  Cora.  205. 


Sect.  217.]  MAYHEM.  209 

included  a  finger,^  an  eye,^  a  foretooth,  and  those  parts  which 
are  supposed  to  give  courage.  But  cutting  off  the  ear  or  the 
nose  is  not  mayhem  at  common  law,  since  the  loss  of  these 
tends  only  to  disfigure,  but  not  to  weaken.^  It  has  been  held 
that  a  statutory  mayhem,  based  on  the  common  law  offence, 
is  not  committed  by  cutting  the  throat,*  or  breaking  the 
skuU,^  there  being  no  deprivation  of  any  member.  The  injury 
must  be  permanent  in  order  to  constitute  the  offence.^  Under 
the  statute,  however,  in  Texas,  the  fact  that  the  injured  mem- 
ber, having  been  put  back,  grew  again  in  its  proper  place,  was 
no  defence.''  The  offence  is  now  almost  universally,  in  this 
country,  defined  by  statute,  and  generally  treated  as  an  aggra- 
vated assault.  In  many  States  the  statutes  cover  cases  not 
embraced  by  the  common  law,  as  the  biting  off  an  ear  or  the 
slitting  of  the  nose,  if  the  injury  amounts  to  a  disfigurement.^ 

Mayhem,  at  common  law,  was  punishable  in  some  cases  as 
a  felony,  —  an  eye  for  an  eye,  and  a  tooth  for  a  tooth,  —  and 
in  others  as  a  misdemeanor.^  But  if  tlie  offence  is  made  a 
felony  in  this  country,  the  punishment  is  defined  by  statute. 
It  is  doubtless,  generally,  a  misdemeanor,  unless  done  with 
intent  to  commit  a  felony .i*^ 

Under  the  statute  in  New  York,  the  injury  must  have  been 
done  by  "  premeditated  design  "  and  "  of  purpose."  Hence, 
if  done  as  the  result  of  an  unexpected  encounter,  or  of  excite- 
ment produced  by  the  fear  of  bodily  harm,  the  offence  is  not 
committed.il     So  under  the  statute  5  Henry  IV,  c.  5,  malice 

1  Bowers  i'.  S.,  24  Tex.  App.  542,  7  S.  W.  247. 

2  Chick  V.  S.,  7  Humph.  (Tenn.)  161. 

a  4  Bl.  Com.  205.     See  also  2  Bish.  Xew  Cr.  Law,  §  1001,  and  notes. 
*  Rex  V.  Lee,  1  Leach,  3d  ed.  61. 

5  Foster  v.  P.,  50  N.  Y.  598,  M.  529. 

6  S.  V.  Briley,  8  Porter  (Ala.),  472. 

7  Slattery  v.  S.,  41  Tex.  619. 

8  S.  V.  Girkin,  1  L-ed.  (N.  C.)  121 ;  S.  v.  Alley,  3  Heisk.  (Tenn.)  8. 

9  4  Bl.  Com.  205 ;  C.  v.  Newell,  7  Mass.  245,  C.  109,  482.  Compare 
Adams  v.  Barratt,  5  Ga.  404  ;  S.  v.  Thompson,  30  Mo.  470;  Canada  v. 
C,  22  Grat.  (Va.)  899. 

10  Ibid.  ;  Stephen's  Dig.  Cr.  Law,  cc.  25  and  26. 
■  11  Godfrey  v.  P.,  63  N.  Y.  207. 

14 


210  CRIMINAL  LAW.  [Sect.  218. 

prepense  was  said  by  Lord  Coke  to  mean  "  voluntarily  and  of 
set  purpose."  1  But  in  North  Carolina,  where  the  statute  pre- 
scribes the  act  done  "  on  purpose  and  unlawfully,  but  without 
malice  aforethought,"  it  has  been  held  that  the  intent  to  dis- 
figure is  prima  facie  to  be  inferred  from  an  act  which  does  in 
fact  disfigure,  and  it  is  not  necessary  to  prove  a  preconceived 
intention  to  disfigure.^ 

HOMICIDE. 

§  218.  Homicide  is  the  killing  of  a  human  being.  It  maybe 
lawful,  as  when  one  shoots  an  enemy  in  war,  or  the  sheriff  ex- 
ecutes another  in  pursuance  of  the  mandate  of  the  court,  or 
kills  a  prisoner  charged  with  felony  in  the  effort  to  prevent 
his  escape,  and  hence  called  justifiable  homicide,  in  contradis- 
tinction to  excusable  homicide,  or  a  homicide  committed  in 
protecting  one's  person  or  the  security  of  his  house. 

Justifiable  Homicide.'^  —  In  addition  to  the  illustrations  al- 
ready given,  it  may  be  said,  generally,  that  wherever,  in  the 
performance  of  a  legal  duty,  it  becomes  necessary  to  the  faith- 
ful and  efficient  discharge  of  that  duty  to  kill  an  assailant  or 
fugitive  from  justice,  or  a  riotous  or  mutinous  person,  or  where 
one  interposes  to  prevent  the  commission  of  some  great  and 
atrocious  crime,  amounting  generally,  though  not  necessarily, 
to  felony,  and  it  becomes  necessary  to  kill  to  prevent  the  con- 
summation of  the  threatened  crime,* — in  all  these  cases  the 
homicide  is  justified  on  the  ground  that  it  is  necessary,  and  in  the 
interest  of  the  safety  and  good  order  of  society.  But  homicide 
can  never  be  justifiable,  except  when  it  is  strictly  lawful  and 
necessary.     The  soldier  who  shoots  his  adversary  must  strictly 

1  Coke,  3  Inst.  62.  See  also  Godfrey  v.  P.,  ante  ;  Molette  v.  S.,  49  Ala. 
18;  S.  V.  Jones,  70  la.  505,  30  N.  W.  750;  S.  v.  Cody,  18  Or.  506,  23  P. 
891,  24  P.  895. 

2  s,  j;,  Girkin,  llred.  (N.  C.)  121.  See  also  S.  v.  Simmons,  3  Ala. 
497;  Carpenter  v.  P.,  31  Col.  284,  72  P.  1072;  U.  S.  v.  Gunther,  5  Dak. 
234,  38  N.  W.  79  ;  S.  v.  Hair,  37  Minn.  351,  34  N.  W.  893  ;  Terrell  v. 
S.,  86  Tenn.  .523,  8  S.  W.  212. 

*  See  16  Harvard  Law  Review,  567. 

*  U.  S.  V.  Wiltberger,  3  Wash.  C.C.  515,  Fed.  Cas.  No.  16,738. 


Sect.  219.] 


HOMICIDE. 


211 


conform  to  the  laws  of  war ;  ^  and  the  sheriff  who  executes  a 
prisoner  must  follow  the  mode  prescribed  by  his  warrant. ^ 

The  distinction  between  justifiable  and  excusable  homicide 
rested,  in  the  early  common  law,  upon  the  fact  that  the  latter 
was  punisliable  by  the  forfeiture  of  goods,  while  the  former 
was  not  punishable  at  all.'^  It  long  since,  however,  became 
very  shadowy,  and  has  now  an  interest  rather  historical  than 
practical,  —  the  verdict  of  not  guilty  being  returned  whenever 
the  circumstances  under  which  the  homicide  takes  place  con- 
stitute either  a  justification  or  an  excuse.* 

§  219.  Human  Being.  Time.  Suicide.  —  In  order  to  con- 
stitute homicide,  the  killing  must  be  of  a  person  in  being ; 
that  is,  born  and  alive.  If  the  killing  be  of  a  child  still  un- 
born, though  the  mother  may  be  in  an  advanced  state  of 
pregnancy,^  or  if  the  child  be  not  wholly  delivered,^  or  if  the 
child  be  born,  and  it  is  not  made  afifirmatively  to  appear  that 
it  was  born  alive,  it  is  no  homicide."  Death,  however,  con- 
sequent on  exposure,  after  premature  birth  alive,  unlawfully 
procured,  is  criminal  homicide.^ 

IjMsjd^o_a_ruleof_tli^_^ni^^ 
present  day,  that  the  death  must  happen  witljlnayearai^^ 
day  after  the  arregeB~cmneTotherwise  it  cannot  be  said, — 
suHPwas"Tlie"l^easomng^  be  consequent  upon  it.^     liLill^ 

computation  of  the  time,  the  whole  day  on  which  the  hurt  was 
rece  i  veolsrecl^onedtjie^r^ 
"TenT)eraIe''suIcidei^self-murder,  and,  though  the  person 


1  S.  V.  Gut,  13  Minn.  3il  ;  4  Bl.  Com.  198. 

2  1  Hale  P.  C.  433. 

3  1  Hawk.  P.  C.  (8th  ed.)  79  et  seq. 

4  4  Bl.  Cora.  186. 

5  1  Russell  on  Crimes  (5th  ed.).  645  ;  Evans  v.  P.,  49  N.  Y.  86. 

6  Rex  V.  Poulton,  5  C.  &  P.  329 ;  Rex  v.  Sellis,  7  C.  cSc  P.  850.     Cora- 
pare  Reg.  v.  Reeves,  9  C.  &  P.  25  ;  S.  v.  Winthrop,  43  la.  519. 

7  Rex  V.  Brain,  6  C.  &  P.  349,  M.  554 ;  U.  S.  v.  Hewson,  7  Law  Re- 
porter (Boston),  361,  Fed.  Cas.  No.  15,360. 

8  Reg.  V.  West,  2  C.  &  K.  784.  M.  565. 

9  Coke's  Third  Inst.  p.  33  ;  P.  r.  Kelly,  6  Cal.  210 ;  S.  v.  Shepherd, 
8  Ired.  (X.  C.)  195. 

10  1  Russell  on  Crimes  (5th  ed.),  673. 


212 


CRIMINAL  LAW. 


[Sects.  220,  22L 


who  commits  suicide,  is  of  course,  not  punishable,  one  who 
advises,  and,  being  present,  aids  and  abets  another  to  com- 
mit suicide,  is  guilty  of  murder.^  So,  also,  one  who  kills 
another  at  his  request  is  as  guilty  of  murder  as  if  the  act 
had  been  done  merely  of  his  own  volition.^ 

§  220.    Murder.  —  Of   unlawful    homicides,   murder   is   the 
most  criminal  in  degree,  and  consistsjiijhej^nlawf^^ 
ofjJiumanJ.)ein^^^  as  when  the  deed 

is  effected  by  poison  knowingly  administered,  or  by  lying  in 
wait  for  the  victim,  or  in  pursuance  of  threats  previously  made, 
and,  generally,  where  the  circumstances  indicate  design,  prep- 
aration, intent,  and  hence  previous  consideration.^ 

^  221.  Malice,  Express  and  Implied.^  —  This  malice  may  be 
express,  as  where  antecedent  threats  of  vengeance  or  other 
circumstances  show  directly  that  the  criminal  purpose  was 
really  entertained  ;  or  implied,  as  where,  though  no  expressed 
criminal  purpose  is  proved  by  direct  evidence,  it  is  indirectly 
but  necessarily  inferred  from  facts  and  circumstances  which 
are  proved. 

Where  the  killin^ca3i^_onljMje^^a£cou^^ 

positioTi  ^oF'design    or   intent,   the   lawconcUigivel^Mm^^ 

TioaTTceT^or^iii  other  words,  the  courts  instruct  the  juryjhat, 

certauT  facts  being "pimedpmaTTceTs^^^t^^  And 

TTe'la^wIienTthough  no  personal  enmity 


malice  is  implied  by 
may  be  proved,  the  perpetrator  of  the  deed  acts  without  prov- 
ocation or  apparent  cause,  or  in  a  deliberately  careless  man- 
ner, or  with  a  reckless  and  wicked  hostility  to  everybody's 
rights  in  general,  or  under  such  circumstances  as  indicate  a 
wicked,  depraved,  and  malignant  spirit;^  and  so  where  a 
deadly  weapon  is  used.*^     So  one  who  is  engaged  in  any  felony 

1  Rex  V.  Dyson,  Russ.  &  Ry.  523 ;  Rex  v.  Abbott,  67  J.  P.  171 ;  C.  v. 
Bowen,  13  Mass.  356,  K.  91,  M.  555. 

2  1  Hawk.  P.  C.  (8th  ed.)  78 ;  Blackburn  r.  S.,  23  ().  St.  116. 

3  4  Bl.  Com.  195 ;  C.  v.  Webster,  5  Cush.  (Mass.)  295,  316. 

4  Ante,  §  33. 

5  Rex  V.  Halloway,  Cro.  Car.  131,  K.  103,  M.  593  ;  S.  i'.  Capps,  131 
N.  C.  622,  46  S.  E.  730;  S.  v.  Smith,  2  Strobr.  (S.  C.)  77  ;  4  Bl.  Com. 
198  ;  2  Bish.  Xew  Cr.  Law,  §§  680  et  seq. 

6  S.  V.  Musick,  101  Mo.  260,  11  S.  \V.  212. 


Sect.  222.]  HOMICIDE.  218 

or  other  crime  of  violence,  or  resisting  a  lawful  arrest,  where 
he  commits  homicide  even  accidentally,  is  guilty  of  murder. 
It  is  generally  said  in  these  cases  that  the  law-  implies  the 
malice  from  the  fact  of  the  hiliing.i  It  has,  however,  heen 
said,  particularly  in  the  cases  of  killing  in  the  course  of  an- 
other felony  or  by  a  dangerous  weapon,  that  while  the  fact  of 
the  killing  under  these  circumstances  is  strong  evidence  from 
which  the  existence  of  malice,  in  the  legal  sense,  may  be 
found,  it  should  be  nevertheless  a  question  of  fact  for  the 
jury  .2 

Whatever  view  may  be  taken  as  to  the  sufficiency  of  the 
evidence  to  establish  malice  and  who  is  the  proper  body  to 
determine  its  existence,  it  is  generally  agreed  that  under  the 
modern  statutes  defining  murder  in  the  first  degree,  as  well 
as  at  common  law,  this  implied  malice  is  effectual  to  constitute 
murder  in  the  first  degree,  all  doubts  as  to  guilt  of  the  higher 
degree  being  resolved  in  favor  of  the  prisoner  and  of  the 
lower  degree.^ 

§  222.  Malice  Aforethought. — It  is  not  necessary  that  the 
design,  preparation,  or  intent  which  constitutes  malice  afore- 
thought should  have  been  entertained  for  any  considerable 
period  of  time  prior  to  the  killing.  It  is  enough  to  constitute 
this  sort  of  malice  that  a  conscious  purpose,  design,  or  intent 
to  do  the  act  should  have  been  completely  entertained,  for 

1  As  to  killing  vs-itli  dangerous  -weapon  see,  in  addition  to  cases  ante, 
p.  212,  notes  5  and  G  :  Grey's  Case,  Kel.  64,  K.  105,  M.  400;  Hadley  v.  S.,  55 
Ala.  31.  As  to  killing  in  resisting  arrest  see  1  Russ.  Crimes,  5th  ed.  723  et 
seq.;  Yong's  Case,  4  Coke,  40a;  Rex  v.  Toinson,  Kel.  66  ;  Rex  v.  Ford, 
R.  &  R.  329  ;  Reg.  v.  Porter,  12  Cox  C.  C.  444 ;  Dilger  r.  C,  88  Ky.  550, 
11  S.  W.  651 ;  P.  V.  Carlton,  115  N.  Y.  618,  22  X.  E.  257  ;  Brooks  v.  C,  61 
Pa.  342 ;  Angell  v.  S.,  36  Tex.  542.  As  to  killing  in  the  course  of  a  felony 
of  violence  see  Rex  r.  Plunimer,  Kel.  109  ;  Errington's  Case,  2  Lewin, 
217,  K.  104;  Rex  v.  Horsey,  3  F.  &  F.  2S7,  K.  109,  M.  599. 

2  Reg.  V.  Sern(^,  16  Cox,  C.  C.  311,  C.  183,  K.  106,  M.  600  ;  Farris  v. 
C,  14  Bush  (Ky.),  362  ;  S.  v.  Greenleaf,  71  N.  H.  606,  54  Atl.  38.  See 
also  1  Wharton  Or.  L.,  10th  ed.,  §§  320,  321 ;  2  Bish.  New  Cr.  L.,  8th  ed., 
§§  680  et  seq.;  Reg.  v.  Greenwood,  7  Cox  C.  C.  404,  M.  566. 

3  Wharton,  Homicide  (2d  ed.),  §§  660-664,  and  cases  there  cited.  See 
also  P.  V.  Suesser,  142  Cal.  354,  75  P.  1093 ;  Wheatly  v.  C,  26  Ky.  L.  R. 
436,  81  S.  W.  687. 


214  CRIMINAL  LAW.  [Sects.  223,  224. 

however  limited  a  period  prior  to  its  execution.^  Yet  in 
Pennsylvania,  where  deliberate  premeditation  is  made  a  neces- 
sary characteristic  of  murder  in  the  first  degree,  it  seems  to 
be  held  that  those  words  imply  something  more  than  malice 
aforethought.2 

§  223.  Imputed  Malice. — The  malice  required  for  murder 
need  not  be  actual  malice  against  the  victim.  One  who,  in- 
tending to  kill  A,  kills  B,  is  guilty  of  murder  ;3  as,  for  in- 
stance, where  he  places  poison  in  the  way  of  an  enemy,  and  a 
friend  takes  it  and  dies.*  So  one  who  has  a  murderous  inten- 
tion, not  however  directed  against  individuals,  as  one  who 
fires  into  a  crowd  intending  to  kill,  is  guilty  of  murder.^ 

§  224.  Presumptive  Malice.  —  It  was  formerly  held  that 
every  homicide  is  to  be  presumed  to  be  of  malice  aforethought, 
unless  it  appears  from  the  circumstances  of  the  case,  or  from 
facts  shown  by  the  defendant  in  explanation,  that  such  malice 
does  not  exist.^  But  the  better  doctrine  now  is,  doubtless,  in 
accordance  with  the  dissenting  opinion  of  Mr.  Justice  Wilde, 
in  the  case  just  cited,  that  when  the  facts  and  circumstances 
attendant  upon  the  killing  are  equivocal,  and  may  or  may  not 
be  malicious,  it  is  for  the  government  to  show  that  they  are 
malicious ;  otherwise,  the  defendant  is  entitled  to  the  most 
favorable  construction  of  which  the  facts  will  admit.  If,  for 
instance,  two  persons  are  in  a  room  together,  and  one  is  seen 
to  emerge  therefrom  holding  a  knife  in  his  hand,  leaving  be- 
hind him  the  other  dead,  and  wounded  in  such  a  manner  that 
it  is  certain  that  the  death  must  have  been  caused  by  the 

1  P.  V.  Williams,  43  Cal.  344;  P.  v.  Suesser,  142  Cal.  354,  75  P.  1093; 
C.  V.  Webster,  5  Gush.  (Mass.)  295;  P.  v.  Clark,  3  Seld.  (N".  Y.)  385;  S. 
V.  Hunt,  134  N.  C.  648,  47  S.  E.  49  ;  Shoemaker  v.  S.,  12  O.  43. 

^  Jones  V.  C,  75  Pa.  403.  Compare  C.  v.  Drum,  58  Pa.  1,  M.  607. 
See  also  Leighton  v.  P.,  88  N.  Y.  117,  C.  191;  Atkinson  v.  S.,  20  Tex. 
522 ;  Cupps  v.  S.,  120  Wis.  504,  97  N.  W.  210,  98  N.  W.  546. 

3  McGehee  v.  S.,  62  Miss.  772. 

4  Saunders's  Case,  2  Plowd.  473,  C.  176,  K.  81,  M.  490  ;  Gore's  Case, 
9  Co.  81a,  C.  182,  M.  557. 

6  S.  V.  Gilman,  69  Me.  163.     See  ante,  §§  28,  32,  34. 
6  C.  v.  York,  9  Met.  (Mass.)  93,  Mr.  Justice  Wilde  dissenting  ;  C.  v. 
Webster,  5  Cush.  (Mass.)  295,  316. 


Sect.  225.]  HOMICIDE.  215 

knife  in  the  hand  of  the  person  who  is  seen  to  emerge,  yet,  as 
the  homicide  may  have  been  murder,  manslaughter,  or  in  self- 
defence,  it  is  for  the  government  to  produce  evidence  that  it 
was  the  former,  before  it  will  be  entitled  to  a  verdict  of  guilty 
of  murder;  and  it  cannot  rely  for  such  verdict  upon  the 
mere  presumption  that,  the  killing  being  shown  without  ex- 
planation, it  was  malicious.^  The  law  does  not  presume  the 
worst  of  several  possible  solutions  against  the  prisoner  ;  it 
rather  presumes  that  that  state  of  facts  is  the  true  one  which 
would  be  most  favorable  to  him.^ 

§  225,  Degrees  of  Murder. — Formerly  murder,  the  least  as 
well  as  the  most  atrocious,  was  punished  by  death.  Now, 
however,  in  many  of  the  States,  murder  has  by  statute  been 
made  a  crime  punishable  with  greater  or  less  severity,  accord- 
ing to  the  circumstances  of  atrocity  under  which  it  is  com- 
mitted,—  death  being  inflicted  only  in  the  most  atrocious 
cases.  Hence  the  different  degrees  of  murder  of  which  the 
books  speak.  Manslaughter  has  also,  by  the  statutes  of  some 
of  the  States,  its  several  degrees,  founded  upon  the  same 
principle  of  greater  or  less  depravity,  indicated  by  the  attend- 
ant circumstances.  These  several  statutes  are  held  not  to 
have  changed  the  form  of  pleading  at  common  law ;  but  the 
jury  are  to  find  the  crime  as  of  the  degree  which  the  facts 
warrant,  the  court  instructing  them  that  such  and  such  facts, 
if  proved,  would  show  the  crime  to  be  of  a  particular  degree. 
Nor  have  those  statutes  changed  the  rules  of  evidence.  Yet, 
in  considering  cases  decided  in  these  States,  it  is  worth  while 
to  consider  that  in  matters  of  definition  the  common  law  of 
murder  may  have  been  modified,  so  that,  in  determining  what 
is  murder  and  what  manslaughter  at  common  law,  these  cases 
are  not  always  safe  guides.^ 

1  See  Bennett  &  Heard's  Leading  Cr.  Cas.,  Vol.  I,  p.  322 ;  Whart.  Horn. 
(2d  ed.),  §§  664,  669;  P.  v.  Woody,  45  Cal.  289;  S.  v.  Porter,  34  la.  131 ; 
Stokes  r.  P.,  53  N.  Y.  164. 

2  Read  v.  C,  22  Grat.  (Va.)  924  ;  U.  S.  v.  Mingo,  2  Curtis  C.  C.  1, 
Fed.  Cas.  No.  15,781. 

3  Davis  V.  S.,  39  Md.  355;  Green  v.  C,  12  All.  (Mass.)  155.  In  Ohio 
there  are  no  crimes  at  common  law,  Smith  v.  S.,  12  0.  St.  466. 


216  CRIMINAL  LAW.  [Sects.  226,  227. 

Where  the  statute  makes  punishable  as  murder  in  the  first 
degree  a  homicide  occurring  during  the  commission  of  another 
felony  of  violence,  it  is  sufficient  if  the  killing  is  done  during 
any  stage  of  the  first  crime.^ 

\  226.  Manslaughter  is  any  unlawful  killing  without  malice 
aforethought;  as  when  one  strikes  his  wife,  and  death  results 
from  the  blow,  though  not  intended,^  or  kills  another  in  a 
fight  arising  upon  a  sudden  quarrel,^  or  upon  mutual  agree- 
ment,^ or  in  the  heat  of  passion,  or  upon  great  provocation.^ 

Every  unlawful  homicide  is  either  murder  or  manslaughter, 
and  whether  it  is  one  or  the  other  depends  upon  the  presence 
or  absence  of  the  ingredient  of  malice.^ 

Manslaughter  may  be  voluntary  or  involuntary.  Voluntary 
manslaughter  is  when  the  act  is  committed  with  a  real  design 
to  kill,  but  under  such  circumstances  of  provocation  that  the 
law,  in  its  tenderness  for  human  frailty,  regards  them  as  pal- 
liating the  criminality  of  the  act  to  some  extent. 

Involuntary  manslaughter  is  when  one  causes  the  death  of 
another  by  some  unlawful  act,  but  without  the  intention  to 
take  life.^ 

§  227.  Mitigating  Circumstances.  —  What  are  the  circum- 
stances of  provocation  which  reduce  this  crime  from  murder 
to  manslaughter  it  is  not  easy  to  define.  It  seems  to  be  agreed 
that  no  words,  however  opprobrious,  and  no  trespass  to  lands 
or  goods,  however  aggravating,  will  be  sufficient.^  To  mitigate 
a  murder  to  manslaughter,  the  excited  and  angry  condition  of 

1  S.  V.  Greenleaf,  71  N.  H.  606,  54  Atl.  38 ;  S.  v.  Brown,  7  Or.  186, 
M.  611. 

2  C.v.  McAfee,  108  Mass.  458. 
8  S.  V.  Massage,  65  N.  C.  480. 

■  4  Gann  v.  S.,  30  Ga.  67. 

5  S.  V.  Murphy,  61  Me.  56;  C.  v.  Webster,  5  Cusb,  (Mass.)  295 ;  Pres- 
ton  V.  S.,  25  Miss.  383;  Holly  v.  S.,  10  Humph.  (Tenn.)  141;  Maria  v.  S., 
28  Tex.  698. 

«  C.  V.  Webster,  ante;  Read  v.  C,  22  Grat.  (Va.)  924. 

''   C.  t'.  Webster,  ante. 

8  Reg.  V.  Mawgridge,  17  How.  St.  Tr.  57,  Kel.  119,  M.  613;  INIorley's 
case,  Kel.  53;  Taylor  v.  S.,  48  Ala.  180;  Wilson  y.  S.,  140  Ala.  43,37 
So.  93 ;  P.  V.  Kelly,  113  N.  Y.  647,  21  N.  E.  122. 


Sect.  227.]  HOMICIDE.  217 

the  person  committing  the  act  must  proceed  from  some  cause 
which  would  naturally  and  instantly  produce  in  the  minds  of 
men,  as  ordinarily  constituted,  a  high  degree  of  exasperation. 
Otherwise,  a  high-tempered  man,  who  habitually  indulges  his 
passion,  would  be  entitled  to  the  same  consideration  as  one 
who  habitually  controls  his  passion.  The  law  seeks  to  arrive 
at  such  a  result  as  will  lead  men  to  cultivate  habits  of  restraint 
rather  than  indulgence  of  their  passions.  Hence  the  question 
ordinarily  is  not  so  much  whether  the  party  killing  is  actually 
under  the  influence  of  a  great  passion,  as  whether  such  a 
degree  of  passion  might  naturally  be  expected  had  he  exer- 
cised such  self-control  as  a  due  regard  to  the  rights,  and  a 
due  consideration  of  the  infirmities,  of  others,  in  the  interest 
of  public  safety,  require.  There  must  also  be  a  reasonable 
proportion  between  the  mode  of  resentment  and  the  provoca- 
tion.^ 

On  the  other  hand,  a  blow  in  the  face  may  be  a  sufficient 
provocation.^  So  it  is  well  settled  that  if  the  husband  detects 
the  wife  in  adultery  a  killing  of  either  the  woman  or  her  para- 
mour will  be  but  manslaughter  if  done  under  the  influence  of 
the  passion  aroused  thereby  ;  ^  and  it  is  enough  if  the  circum- 
stances are  so  suspicious  that  the  belief  of  the  husband  is 
a  reasonable  one.*  While  it  is  the  general  rule,  as  stated 
above,  that  words  alone,  no  matter  how  insulting  or  oppro- 
brious, will  not  amount  to  a  sufficient  provocation,  yet  it  has 
also  been  held  that  where  the  adultery  of  the  wife  is  brought 
home  to  the  husband,  not  by  sight,  but  by  words,  the  provo- 

1  Reg.  V.  Welsh,  11  Cox  C.  C.  336  ;  Flanagan  v.  S.,  46  Ala.  703  ;  P.  v. 
Butler,  8  Cal.  435;  C.  v.  Webster,  5  Cush.  (Mass.)  295;  Preston  v.  S., 
25  Miss.  383;  S.  v.  Starr,  38  Mo.  270;  Fralich  v.  P.,  65  Barb.  (N.  Y.)  48  ; 
2s"elson  V.  S.,  10  Humph.  (Tenn.)  518. 

2  Reg.  I'.  Stedman,  Foster  C.  L.  292. 

3  Rex  V.  Maddy,  1  Ventris,  158,  K.  HI  ;  Pearson's  case,  2  Lewin  C  C. 
216;  Jones  v.  P.,  23  Col.  276,  47  P.  275;  Mays  c.  S.,  88  Ga.  399,  14  S.  E. 
560;  Rowland  r.  S.,  83  Miss.  483,  35  So.  826.  Compare  Lynch  v.  C,  77 
Pa.  205;  S.  v.  Hockett,  70  la,  442,  30  N.  W.  742. 

4  S.  V.  Yanz,  74  Conn.  177,  50  Atl.  37,  M.  631 ;  Canister  v.  S.  (Tex.), 
79  S.  W.  24. 


218  CRIMINAL  LAW.  [Sect.  228. 

cation  is  equally  great,  since  it  is  not  the  character  of  the 
words  in  themselves  but  the  information  that  they  convey, 
that  arouses  the  anger. ^  Of  course  if  tliere  is  a  sufficient 
cooling  time  between  the  receipt  of  the  information  and  the 
killing,  the  crime  is  murder.^ 

§  228.  Provocation.  —  The  homicide  is  not  entitled  to  this 
reduction  in  the  degree  of  its  criminality,  unless  it  be  done 
under  the  influence  of  the  provocation.  If  it  be  done  under 
its  cloak,  it  will  not  avail  to  excuse  to  any  extent.  If  it  can 
be  reasonably  collected  from  the  wenpon  made  use  of,  or  from 
any  other  circumstances,  that  there  was  a  deliberate  attempt 
to  kill,  or  to  do  some  great  bodily  harm,  such  homicide  will 
be  murder,  however  great  may  have  been  the  provocation.^ 
Nor  docs  provocation  furnish  any  extenuation,  unless  it  pro- 
duces passion.^  And  seeking  a  provocation  through  a  quarrel 
or  otherwise,  or  going  into  a  figlit  dangerously  armed  and  tak- 
ing one's  adversary  at  unfair  advantage,  is  such  evidence  of 
malice  as  to  deprive  the  guilty  party  of  all  advantage  of  the 
plea  of  provocation.^  Where  two  parties,  as  in  the  case  of  a 
duel,  enter  into  a  conflict  deliberately,  and  death  ensues  to 
either,  it  is  murder  by  the  other ;  while  the  same  result,  if  the 
conflict  be  sudden  and  in  hot  blood,  is  but  manslaughter.'^ 

Upon  this  point,  also,  the  fact  that  the  injured  party  is 
greatly  the  inferior  of  his  assailant,  —  as  if  he  be  a  child,  or 
■woman,  or  a  man  physically  or  mentally  enfeebled,  —  is  an 
important  element   in  determining  how  much  is  to   be  de- 

1  Reg.  V.  Rothwell,  12  Cox  C.  C.  145  ;  Maher  v.  P.,  10  Mich.  212;  S. 
V.  Giugin,  147  Mo.  39,  47  S.  W.  1058,  M.  625;  contra:  Reed  v.  S.,  62 
Miss.  405 ;  S.  v.  Neville,  6  Jones  (N.  C),  423. 

2  Sawyer  v.  S.,  35  Tnd.  80 ;  Hardcastle  v.  S.,  36  Tex.  Cr.  R.  555,  38  S. 
W.  186  ;  ^post,  §  228. 

8  1  Russell  on  Crimes,  5th  ed.,  688,  690;  Felix  i'.  S.,  18  Ala.  720;  Hen- 
ning  V.  S.,  106  Tnd.  386,  6  N.  E.  803;  S.  v.  Hicks,  178  Mo.  433,  77  S.  W. 
539;  P.  V.  Austin,  1  Parker  C.  C.  (N.  Y.)  154  ;  S.  v.  Ellick,  60  N.  C. 
450;  S.  V.  Cheatwood,  2  Hill  (S.  C),  459. 

4  S.  V.  Johnson,  1  Ired,  (N.  C.)  354. 

5  Price  V.  S.,  36  Miss.  531 ;  S.  v.  Hildreth,  9  Ired.  (N.  C.)  429. 

«  Rexy.  Ayes,  R.  &  R.  167,  K.  113;  S.  v.  Underwood,  57  Mo.  40; 
U.  S.  V.  Mingo,  2  Curtis  C.  C.  1,  Fed.  Cas.  No.  15,781. 


Sect.  229.]  HOMICIDE.  219 

ducted  from  the  criminality  of  the  offence  on  the  score  of 
provocation.^ 

And  however  great  may  have  been  the  provocation,  if  suffi- 
cient time  and  opportunity  have  transpired  to  allow  the 
aroused  passions  to  subside,  or  the  heated  passions  to  cool, 
death  afterwards  inflicted  is  murder,  whether  the  passions  have 
subsided  or  the  heated  blood  cooled  or  not ;  and  it  is  a  question 
of  law  for  the  court  to  say  whether  that  time  has  elapsed.^  In 
other  jurisdictions,  however,  it  has  been  said  that  the  question 
of  the  reasonableness  of  the  provocation,  and  the  question 
whether  the  passions  should  have  cooled,  are  in  their  na- 
ture questions  of  fact,  and,  as  such,  should  be  left  to  the 
decision  of  the  jury/^ 

§  229.  Provocation.  Unlawful  Arrest.  —  But  there  are  cases 
where  the  provocation  does  not  produce  that  heated  passion  of 
which  we  have  just  been  speaking,  and  where,  although  the 
homicide  be  deliberately  committed,  and  is  not  shown  to  be 
necessary,  the  act  is  held  by  the  law  to  be  manslaughter,  and 
not  murder.  Thus  it  has  been  held,  in  some  cases,  that,  where 
an  unlawful  arrest  is  attempted  or  made,  the  party  pursued 
or  arrested  may  kill  his  assailant,  either  in  resistance  to  the 
arrest  or  in  the  attempt  to  escape,  although  the  act  be  done 
under  such  circumstances  as  would  equal  or  surpass,  in  point 
of  atrocity  and  moral  turpitude,  many  cases  recognized  as 
murder.'* 

This  doctrine,  however,  does  not  meet  with  universal  ap- 
proval, and  it  is  held  in  other  cases  that  the  mere  fact  that  an 
attempted  arrest  is  unlawful  does  not  necessarily  reduce  the 
killing  of  the  officer  to    manslaughter.      In   this   case,  the 

1  C.  r.  Mosler,  4  Barr  (Pa),  264. 

2  Rex  V.  Hayward,  6  C.  &  P.  157;  Jarvis  v.  S.,  138  Ala.  17,  34  So. 
1025;  Beauchamp  v.  S.,  6  Blackf.  (Ind.)  299;  S.  v.  Moore,  69  N.  C.  267; 
S.  V.  McCants,  1  Speer  (S.  C),  384,  U.  621. 

3  S.  V.  Gardner,  1  Houst.  Crim.  Ptep.  (Del.)  146;  Ferguson  r.  S.,  49 
Ind.  33  (semble)  ;  Maher  r.  P.,  10  Mich.  212;  S.  v.  Grugin,  147  Mo.  39, 
47  S.  W.  1058,  M.  625  ;  Small  v.  C,  91  Pa.  304. 

4  Rex  V.  Thompson,  1  Moo.  C.  C  80,  C.  174 ;  Reg  v.  Carey,  14  Cox 
C.  C.  214 ;  Rafferty  v.  P.,  69  111.  Ill ;  C.  v.  Carey,  12  Cush.  (Mass.)  246. 
Compare  Protector  v.  Buckner,  Styles,  467. 


220  CRIMINAL  LAW.  [Sect.  230. 

assailed  party  may  use  such  reasonable  force,  and  only  such, 
in  proportion  to  the  injury  threatened,  as  is  necessary  to  effect 
his  escape.  This,  however,  does  not  warrant  him  in  the  use 
of  a  deadly  weapon,  if  he  has  no  reason  to  apprehend  a  greater 
injury  than  a  mere  unlawful  arrest.^  Probably  tlie  killing  in 
such  case,  with  express  malice,  would  be  lield  to  be  murder.^ 
And  the  better  rule  would  seem  to  be  that  while,  if  he  uses 
only  a  reasonable  amount  of  force  to  resist  the  arrest,  or  if 
there  are  circumstances  reasonably  provoking  him  to  hot 
blood,  and  death  results,  it  is  manslaughter,  the  mere  fact 
that  the  arrest  is  unlawful  is  not  sufficient  so  to  reduce  tlie 
offence.^  So,  a  fortiori,  when  the  illegal  arrest  is  not  of  the 
defendant  but  of  a  third  person.*  So,  in  defence  of  one's  own 
house,  or  his  castle,  the  law  will  not  justify  a  killing  of  the 
assailant,  unless  the  assault  be  of  such  a  nature  as  to  threaten 
deatli  or  great  bodily  harm  to  the  inmate.  A  mere  threatened 
injury  to  the  house,  which  docs  not  also  threaten  the  personal 
safety  of  the  inmates,  does  not  make  necessary,  and  therefore 
does  not  justify,  the  killing  of  the  assailant  to  prevent  the 
possible  injury.  A  mere  trespass  upon  the  property,  without 
a  felonious  purpose,  cannot  be  repelled  by  taking  the  life  of 
the  assailant.^ 

§  230.  The  Death  Must  Be  the  Direct  Result  of  the  Unlawful 
Act.  —  It  was  formerly  held  that  if  a  witness  by  false  testi- 
mony, with  the  expi-ess  purpose  of  taking  life,  procure  the 
conviction  and  execution  of  a  prisoner,  this  would  be  murder 
by  the  false  witness.^  But,  aside  from  the  fact  that  the  direct 
connection  between  the  testimony  and  the  execution  could  in 

1  Galvin  v.  S.,  6  Cold.  (Tenn.)  283. 

2  Roberts  v.  S.,  14  Mo.  138. 

3  Reg.  V.  Allen,  17  L.  T.  Rep.  N.S.  222  ;  Noles  v.  S.,  26  Ala.  31 ;  Keady 
V.  P.  (Col.),  74  P.  892;  Rafferty  v.  P.,  72  111.  37  ;  Brown  v.  S.,  62  N.  J.  L. 
660,42  Atl.  811 ;  Vann  v.  S.  (Tei),  77  S.  W.  813;  Miller  v.  S.,  32  Tex. 
Cr.  R.  319,  20  S.  W.  1103. 

■*  Hugget's  Case,  Kel.  59.  Compare  Reg.  r.  Tooley,  11  Mod.  242  ; 
Rex  V.  Adey,  1  Leach,  4th  ed.  206. 

5  S.  V.  Patterson,  45  Vt.  208.  See  also  Carroll  v.  S.,  23  Ala.  28;  1 
Russell  on  Crimes,  5th  ed.  G85;  /io.sV,  §  235. 

6  Rex  V.  McDaniel,  1  Leach,  4th  ed.  44,  C.  167,  K.  97. 


<!: 


Sect.  230.]  HOMICIDE.  221 

few  if  any  cases  be  shown  with  that  certainty  of  proof  required 
in  criminal  cases,  the  perils  of  such  a  rule  would  tend  to  deter 
honest  witnesses  from  testifying  to  wliat  they  believe  to  be 
true.  The  injury  to  society,  to  say  nothing  of  the  injustice  of 
such  a  rule,  is  so  out  of  proportion  to  any  possible  advantage, 
that  modern  jurisprudence  seems  to  have  discarded  it. 

So,  though  one  wlio  owes  a  personal  public  duty  may  incur 
criminal  responsibility  by  neglecting  it,  yet  where  road  com- 
missioners, whose  duty  it  was  to  keep  a  road  in  repair,  with 
power  to  contract,  neglected  to  coutract,  and  suffered  the  road 
to  become  out  of  repair,  it  was  held  that,  when  injury  resulted 
from  the  want  of  repair,  neglect  to  contract  was  not  the  cause 
of  the  injury,  in  such  a  sense  as  to  be  imputable  to  their  neg- 
lect.i  So  where  the  defendant  keeps  fireworks  in  his  house 
and  they  are,  solely  by  the  negligence  of  his  servants,  caused 
to  explode  and  so  kill  a  person,  lie  is  not  responsible  for  the 
death. 2 

Where  death  follows  a  wound  adequate  to  produce  it,  the 
wound  will  be  presumed  to  be  the  cause,  unless  it  be  shown 
that  the  death  was  solely  the  result  of  some  other  cause,  and 
not  of  the  wound.^  The  wound  being  an  adequate,  primary, 
or  contributory  cause  of  the  death,  the  intervention  of  another 
cause,  preventing  possible  recovery  or  aggravating  the  wound, 
will  not  relieve  the  defendant.  If  death  be  caused  by  a  dan- 
gerous wound,  or  from  a  disease  produced  by  the  wound,  gross 
ig-norance  or  carelessness  of  the  deceased  and  his  attendants 
in  its  treatment  does  not  relieve  the  party  who  inflicted  the 
wound  from  responsibility.*  Death  from  a  cause  independent 
of  the  wound  will,°  as  where  A  knocks  B  down  and  the  latter 
is  killed,  not  by  the  blow,  but  by  a  horse  kicking  him.^  But 
it  will  be  no  excuse  to  show  that,  if  proper  treatment  had  been 

1  Reg.  ;;.  Pocock,  17  Q.  B.  34. 

2  Reg  V.  Bennett,  Bell  1,  M.  567. 

3  Parsons  i:  S.,  21  Ala.  300;  C.  v.  Hackett,  2  All.  (Mass.)"13G;  Cram 
V.  S.,  61  Miss.  1,  1  So.  1 ;  and  see,  ante,  §§  24  et  seq. 

*  Bowles  V.  S.,  58  Ala.  335 ;  Kee  v.  S.,  28  Ark.  155. 

5  C.  V.  Hackett,  ante :  C.  v.  Costley,  118  Mass.  1;  S.  v.  Scates,  5  Jones 
(N.  C),  420. 

6  P.  V.  Rockwell,  39  Mich.  503. 


222  CRIMINAL  LAW.  [Sect.  230. 

had,  the  death  would  not  have  ensued.^  Mortal  illness,  either 
from  a  prior  wound  or  other  cause,  is  no  excuse  for  one  who 
produces  death  by  another  independent  wound  or  other  source,^ 
though  it  has  been  said  that,  if  death  is  the  result  of  prior 
fatal  disease,  hastened  by  a  wound,  the  person  inflicting  the 
wound  is  not  responsible  for  thedeath.^  It  is  also  said  that  it 
is  not  murder  to  work  on  the  imagination  so  that  death  ensues, 
or  to  excite  the  feelings  so  as  to  produce  a  fatal  malady.*  But 
it  is  apprehended  that  if  the  death  be  traceable  to  the  acts 
done  as  the  direct  and  primary  cause,  and  if  it  can  be  shown 
that  the  acts  done  were  done  for  the  purpose  of  accomplishing 
the  result,  it  would  be  murder.  The  question  must  always  be 
whether  the  means  were  designedly,  or,  in  the  sense  of  the  law, 
maliciously  and  successfully  used  to  produce  the  result.  If 
they  were,  then  the  guilt  of  murder  is  incurred  ;  otherwise, 
life  might  be  deliberately  taken  by  some  means,  with  impunity. 
To  frighten  one  to  death  deliberately  is  as  much  murder  as  to 
choke  or  starve  him.^  The  difficulty  of  proof  that  death  results 
from  a  particular  cause  constitutes  sufficient  reason  for  caution ; 
but  if  the  truth  be  clear,  the  law  should  not  fail  to  attach  the 
penalty.*^ 

The  defendant  is  equally  responsible  for  the  death  where  it 
results,  not  from  the  immediate  application  of  force  by  him 
but  where  he  could  reasonably  have  foreseen  that  as  a  result 
of  his  act  the  second  force  would  be  applied.  So  where  one 
by  threats  or  show  of  force  compels  another,  acting  reasonably, 
to  leap  into  a  river  or  out  of  a  window  in  the  attempt  to  es- 
cape, the  assailant  is  criminally  chargeable  with  tlie  conse- 
quences ; '  and  where  a  husband  by  threats  or  force  causes 

1  1  Hale  P.  C.  428. 

2  P.  V.  Ah  Fat,  48  Cal.  61 ;  S.  v.  O'Brien,  81  la.  88,  46  N.  W.  752  ; 
Hopkins  )'.  C,  25  Ky.  L.  R.  2117,  SO  S.  W.  156. 

a  Livingston  v.  C,  14  Grat.  (Va.)  592. 

4  1  Hale  P.  C.  429. 

8  See  2  Rish.  New  Cr.  Law,  §§  642,  643,  and  note  2  to  §  643 ;  Reg.  v. 
Towers,  12  Cox  C.  C.  530,  C.  163,  K.  95. 

6  But  see  Whart.  Horn.,  §§  368-372,  and  notes. 

f  Reg.  V.  Pitts,  Car.  &  M.  284 ;  Reg.  v.  Halliday,  61  L.  T.  Rep.  701 ; 
Norman  v.  U.  S.,  20  App.  Cas.  D.  C.  494. 


Skct.  231.]  HOMICIDE.  223 

his  wife,  in  reasonable  fear  of  violence,  to  leave  the  house,  and 
being  unable  to  secure  shelter,  she  is  frozen  to  death,  as  might 
have  been  foreseen,  the  husband  is  guilty  of  homicide.^  So 
where  a  mother  exposes  her  child  in  such  a  way  that  it  is 
likely  to  be  injured  by  wild  beasts.^  An  indictment  charging 
that  the  prisoner  caused  the  death  by  some  means  unknown 
to  the  grand  jury,  and  therefore  undcscribed,  is  sufficient  upon 
which  to  find  a  verdict  of  guilty  of  murder,  if  the  case  will  not 
admit  of  greater  certainty  in  stating  the  means  of  causing  the 
death  .^ 

Though  it  was  formerly  doubted  by  some  distinguished 
judges,  it  seems  now  to  be  settled  that  the  mere  omission  to 
do  a  positive  duty,  whereby  one  is  suffered  to  starve  or  freeze, 
or  to  suffocate  or  otherwise  perish,  is  manslaughter,  if  merely 
heedlessly  done  ;  wdiile  it  is  murder,  if  the  omission  is  with 
intent  to  bring  about  the  fatal  result.'* 

§  231.  Unlawfulness.  — The  unlawfulness  which  is  a  neces- 
sary ingredient  in  the  crime  of  murder  or  manslaughter  may 
arise  out  of  the  mode  of  doing  a  lawful  act.  Thus,  if  one  is 
engaged  in  the  repair  of  a  building  situated  in  a  field  away 
from  any  street,  and  where  there  is  no  reason  to  suppose 
people  may  be  passing,  and,  being  upon  the  roof,  and  in  igno- 
rance of  the  fact  that  any  person  is  below,  throws  down  a 
brick  or  piece  of  timber,  whereby  one  not  known  or  supposed  to 
be  there  is  killed,  the  act  being  in  itself  lawful  and  unattended 
with  any  degree  of  carelessness,  he  is  guilty  of  no  offence. 
The  death  is  the  result  of  accident  or  misadventure.  If  we 
suppose  the  circumstances  to  be  somewhat  changed,  and  the 
building  to  be  situated  upon  the  highway  in  a  country  town, 
where  passengers  are  infrequent,  and  the  same  act  is  done 
with  the  same  result,  the  precaution,  however,  being  taken  of 

1  Anon.,  Y.  B.  2  Ed.  Ill,  18  b,  K.  92;  Hendrickson  v.  C,  85  Ky.  281, 
3  S.  W.  166. 

2  The  Harlot's  Case,  Cromp.  Just.  24,  K.  92  See  also  Rex  v.  Hick- 
man, 5  C.  &  P.  151,  M.  564;  S.  v.  Monroe,  121  N.  C.  677,  28  S.  E.  547; 
Taylor  v.  S.,  41  Tex.  Cr.  R.564,  55  S.  W.  961,  M.  575. 

3  C.  V.  Webster,  5  Cush.  (Mass.)  295. 

4  Reg.  V.  Conde,  10  Cox  C.  C.  547,  C.  165;  ante,  §§  30,  31. 


224  CRIMINAL  LAW.  [Sect.  232. 

first  looking  to  see  if  any  one  is  passing,  and  calling  out  to 
give  warning  of  danger,  the  killing  would  still  be  by  misad- 
venture, and  free  from  guilt,  because  the  act  done  is  lawful 
and  with  due  care.  Yet  were  the  same  act  to  be  done  in  a 
populous  town,  where  people  are  known  to  be  continually  pass- 
ing, even  though  loud  warning  were  to  be  given,  and  death 
should  result,  it  would  be  manslaughter ;  and  if  no  warning  at 
all  were  given,  it  would  be  murder,  as  evincing  a  degree  of 
recklessness  amounting  to  general  malice  toward  all.^  So 
when  a  parent  is  moderately  correcting  his  child,  and  happens 
to  occasion  his  death,  it  is  only  misadventure  ;  for  the  act  of 
correction  is  lawful.  But  if  he  exceeds  the  bounds  of  moder- 
ation either  in  the  manner,  the  instrument  used,  the  quantity 
of  punishment,  or  in  any  other  way,  and  death  ensues,  it  is 
manslaughter  at  least,  and,  under  circumstances  of  special 
atrocity,  might  be  murder.^  The  same  act,  therefore,  which 
under  certain  circumstances  would  be  lawful  and  proper,  and 
involve  no  guilt  even  if  death  should  ensue,  might  under  other 
circumstances  involve  the  guilt  of  manslaughter,  or  even 
murder.^ 

The  condition  of  the  person  ill  treated,  as  where,  being  in  a 
debilitated  condition,  he  is  compelled  to  render  services  for 
which  he  is  for  the  time  being  incompetent,  is  often  a  control- 
ling circumstance  in  determining  the  guilt  of  the  offender.* 

So,  though  one  is  not  in  general  criminally  liable  for  the 
death  of  a  servant  by  reason  of  the  insufficiency  of  food  pro- 
vided, yet  if  the  servant  be  of  such  tender  age,  or  of  such  bodily 
or  mental  weakness,  as  to  be  unable  to  take  care  of  himself,  or 
is  unable  to  withdraw  from  his  master's  dominion,  the  master 
may  be  criminally  responsible.^ 

§  232.  Negligence.  Carelessness. ^  —  The  point  at  which,  in 
the  performance  of   a  lawful  act,  one  passes  over   into  the 

1  4  Bl.  Com.  192.  '^  4  Bl.  Com.  182. 

3  S.  V.  Vance,  17  la.  138;  C.  v.  York,  9  Met.  (Mass.)  93;  S.  v.  Harris, 
63  X.  C.  1 ;  Ann  v.  S.,  11  Humph.  (Tenn.)  159. 

4  C.  y.  Fox,  7  Gray  (Mass.),  585;  U.  S.  v.  Freeman,  4  Mason  C.  C.  505, 
Fed.  Cas.  No.  15,162,  M.  561. 

5  Reg.  V.  Smith,  10  Cox  C.  C.  82. 

6  Ante,  §§  29-31. 


Sect.  232.]  HOMICIDE.       '  225 

region  of  unlawfulness  is  so  uncertain,  the  line  of  demarcation 
is  so  shadowy,  tliat  it  has  been,  and  from  the  very  nature  of 
the  case  must  continue  to  be,  a  most  prolific  source  of  legal 
controversy.  It  is  often  said  that  the  negligence  or  careless- 
ness must  be  so  gross  as  to  imply  a  criminal  intent ;  but  the 
question  still  remains  as  to  when  it  reaches  that  point,  and  no 
rule  by  which  to  test  it  has  been  or  can  be  given.  Each  particu- 
lar case  must  be  determined  upon  its  particular  circumstances  ; 
and  precedents,  though  multitudinous,  are  so  generally  dis- 
tinguishable by  some  special  circumstance,  that  in  a  given 
case  they  seldom  afford  any  decisive  criterion,  though  in 
many  instances  they  may  aiTord  substantial  aid.^  Self-defence 
is  lawful,  but,  if  carried  beyond  the  point  of  protection,  it 
becomes  in  its  turn  an  assault,  unlawful  and  criminal.  If  a 
man  has  a  dangerous  bull  and  does  not  tie  him  up,  but  leaves 
him  at  liberty,  according  to  some  opinions,  says  Hawkins, 
he  is  guilty  of  murder,^  but  certainly  of  a  very  gross  misde- 
meanor, if  a  man  is  gored  to  death  by  the  buU.^  On  the 
other  hand,  says  Mr.  Justice  Willes,  if  the  bull  be  put  by  the 
owner  into  a  field  where  there  is  no  footpath,  and  some  one 
else  let  the  bull  out,  and  death  should  ensue,  the  owner 
would  not  be  responsible.  Yet,  doubtless,  guilt  or  innocence, 
and  tlie  degree  of  guilt,  would  depend  upon  what,  under  all 
the  circumstances,  the  owner  had  reason  to  believe  might  be 
the  result  of  his  act,  wliether  or  not  it  would  be  inappreciably, 
appreciably,  or  in  a  higher  degree  hazardous  to  the  lives 
of  others.  And  this  again  would  depend  upon  a  variety  of 
circumstances;  —  as  the  degree  of  viciousness  of  the  bull; 
the  time,  whetlier  day  or  night,  when  he  might  be  put  in  the 
field ;  the  probability  that  he  might  be  let  out,  or  that  some 
one  would  pass  through  the  field  ;  the  size  of  the  field ;  its 
nearness  to  or  remoteness  from  a  populous  neighborhood; 
and  many  others  which  might  be  suggested,  but  whicli  cannot 
be  foreseen  or  properly  estimated  except  in  their  relation  to 
other  concomitant  circumstances.^ 

1  See  Reg.  v.  Shepherd,  L.  &  C  147. 

2  I  P.  C.  (8th  ed.)  92. 

8  Reg.  V.  Spencer,  10  Cox  C.  C.  525. 

*  See,  for  cases  illustrative  upon  this  point,  the  valuable  and  elaborate 

16 


226  CRIxMINAL  LAW,  [Sect.  233. 

Carelessness  in  a  physician,  whether  licensed  or  unlicensed, 
may  be  criminal,  if  it  be  so  gross  and  reckless  as  amounts  to 
a  culpable  wrong,  and  shows  an  evil  mind  ;  ^  but  if  he  make 
a  mistake  merely,  it  is  not  criminal.'-^ 

And  it  seems  that  gross  ignorance  may  be  criminal ;  ^  and 
that,  though  the  intent  be  good,  one  who  is  not  a  regularly 
educated  physician  has  no  right  to  hazard  medicine  of  a 
dangerous  character  unless  it  be  necessary.'*  But  this,  doubt- 
less, would  depend  upon  the  intent,  degree  of  intelligence, 
and  other  circumstances.  Reckless  disregard  of  consequences 
would  be  criminal  in  a  regularly  educated  physician,  while 
the  best  efforts  of  a  pretender,  made  in  good  faith  and  in  an 
emergency,  would  be  entirely  free  from  fault.'^  And  if  a  man 
voluntarily  undertakes  to  perform  the  duties  of  a  position  to 
which  he  is  unsuited  by  his  ignorance,  he  cannot  avail  himself 
of  the  plea  of  ignorance  as  an  excuse.  It  was  so  held  in  the 
case  of  an  engineer  of  a  steamboat.^ 

§  233.  Neglect  of  Duty.  —  The  refusal  or  omission  to  act, 
when  legal  duty  requires,  may  be  as  criminal  as  an  act  posi- 
tively committed.  Thus,  where  it  was  the  duty  of  a  miner  to 
cause  a  mine  to  be  ventilated,  and  he  neglected  to  do  it,  and 
as  a  consequence  the  fire-damp  exploded,  causing  the  death 
of  several  persons,  this  was  held  criminal,"  and  it  would  be 
murder  if  the  result  was  intended.^  So  an  engineer,  by 
whose  omission  of  duty  an  explosion  takes  place  ^  or  a  railway 
train  runs  off  the   track,!"^  or  any  person  bound   to  protect, 

note  of  Judge  Bennett  to  Rex  v.  Hull,  Kel.  40,  K.  125,  in  1  Leading  Cr. 
Cas.  50. 

1  Reg.  V.  Spencer,  10  Cox  C.  C  525 ;  Rex  v.  Van  Butchell,  3  C.  &  P. 
629;  Ricei;.  S.,  8  Mo.  561. 

2  Reg.  V.  Chamberlain,  10  Cox  C.  C  186,  C.  172;  S.  v.  Hardister,  38 
Ark.  605. 

3  Rex  V.  Spiller,  5  C.  &  P.  333. 

■*  Simpson's  Case,  1  Lewin,  172. 

"  C.  V.  Thompson,  6  Mass.  134;  1  Hawk.  P.  C.  (8th  ed.)  104. 
«  U.  S.  V.  Taylor,  5  McLean  C.  C.  242,  Fed.  Cas.  Ko.  16,441. 
■^  Reg.  V.  Haines,  2  C.  &  K.  368. 
8  Reg.  V.  Conde,  10  Cox  C.  C.  547. 
*  U.  S.  V.  Taylor,  ante. 
10  Reg.  V.  Benge,  4  F.  &  F.  504. 


Sect.  234.]  -  HOMICIDE.  227 

succor,  or  support  who  neglects  his  duty,  whereby  death 
ensues,  is  criminally  liable.^ 

§  234.  Self-defence.-^  Necessity.  —  The  limitations  to  the 
exercise  of  the  right  of  self-defence  have  already  been  stated 
under  the  title  of  Assault.  To  what  has  there  been  said  it 
should  be  here  added  that  it  was  the  ancient,  and  by  the 
weight  of  authority  it  is  the  modern,  doctrine  that  before  the 
assaulted  party  will  be  justified  in  availing  himself  of  such 
moans  of  self-defence  as  meuaco  the  life  of  his  assailant,  he 
must  retreat,  except  perhaps  in  defence  of  his  dwelling- 
house,^  if  it  can  be  done  with  safety.  He  must  not  avail 
himself  of  the  right  to  kill  his  assailant,  if  he  can  escape 
the  extreme  necessity  with  safety  to  himself.  The  point  of 
honor,  that  retreating  shows  cowardice,  is  of  less  public 
concern  than  would  be  the  extension  of  the  right  to  take  the 
life  of  another  beyond  the  limit  of  clear  necessity.*  Perhaps 
the  tendency  of  modern  decisions  is  toward  less  strictness  in 
requiring  the  assailed  party  to  retreat,  and  to  hold  that  a  man 
who  entirely  without  fault  is  feloniously  assaulted  may  kill 
his  assailant,  without  first  attempting  to  avoid  the  necessity 
by  retreating,  it  being  possible  to  retreat  with  safety.^ 

But  the  necessity  which  excuses  homicide  in  self-defence  is 
not  a  justification  of  the  party  who  seeks  and  brings  on  the 
quarrel  out  of  which  the  necessity  arises.^     He  cannot  excuse 

1  Reg.  r.  Mabbett,  5  Cox  C.  C.  339;  S.  v.  Shelledy,  8  la.  477;  S.  v. 
Hoit,  23  N.  H.  355;  S.  );.  O'Brien,  32  N.  J.  L.  169.  See  also  Judge 
Bennett's  note  to  Reg.  v.  Lowe  (3  C.  &  K.  123,  K.  132),  in  1  Leading  Cr. 
Cas.  60,  where  the  cases  illustrative  of  this  point  are  very  f idly  collected 
and  stated. 

2  A>ite,  §§  63,  64. 

3  See  post,  §  235. 

*  1  Hale  P.  C.  481 ;  Coffman  v.  C,  10  Bush  (Ky.),  495;  P.  v.  Cole, 
4  Parker  C.  C.  (N.  Y.)  35 ;  S.  r.  Ferguson,  9  Nev.  106  ;  S.  v.  Hoover, 
4  D.  &  B.  (N.  C.)  365;  Stoffer  v.  S.,  15  O.  St.  47;  Vaiden  v.  C,  12 
Grat.  (Va.)  717;  U.  S.  v.  Mingo,  2  Curtis  C  Ct.  (U.  S.)  1,  Fed.  Cas. 
No.  15,781  ;  Whart.  Horn.,  §§  485  et  seq. 

5  Runyan  v.  S.,  57  Lid.  80  ;  Erwin  v.  S.,  29  O.  St.  186.  Compare  ante, 
§  64. 

6  S.  V.  Neeley,  20  la.  108  ;  S.  v.  Underwood,  57  Mo.  40;  S.  v.  Smith, 
10  Nev.  106 ;  S.  v.  Hill,  4  D.  &  B.  (N.  C.)  491;  Vaiden  v.  C,  ante. 


228  CRIMINAL  LAW.  [Sect.  235. 

himself  by  a  necessity  which  he  has  himself  created.  Nor 
can  he  be  justified  or  excused  for  a  homicide  done  upon 
the  plea  of  necessity,  if  the  necessity  arises  from  his  own 
fault.i 

§  235.  Self-defence.'^  Proper  Mode.  —  And  the  defence  must 
be  not  only  necessary,  but  also  by  appropriate  means,  —  that 
is  to  say,  in  order  to  excuse  a  homicide  as  done  in  self-defence, 
it  must  be  made  to  appear  that  the  taking  of  the  life  of  the 
assailant  in  the  mode  adopted  appeared,  upon  reasonable 
grounds,  to  the  person  taking,  and  without  negligence  on  his 
part,  necessary  to  save  himself  from  immediate  slaughter  or 
from  great  bodily  harm,  —  the  actual  existence  of  the  danger 
'being  immaterial,  if  such  were  the  appearances  to  him.^ 

In  defence  of  property  merely  as  property,  homicide  is  not 
excusable.*  But  where  a  man's  house,  in  so  far  as  it  is  his 
asylum  or  his  property,  is  assailed,  and  in  such  a  manner  that 
his  personal  security  is  threatened,  or  that  of  those  whom  he 
has  the  right  to  protect,  and  the  assault  may  be  said  to  be  in 
some  sense  an  assault  upon  him,  and  to  threaten  his  life,  or  to 
do  him,  or  those  he  has  the  right  to  protect,  some  great 
bodily  harm,  it  will  be  held  excusable.  But  the  excuse  rests 
upon  the  fact  that  personal  injury  is  threatened.  The  law 
does  not  allow  human  life  to  be  taken  except  upon  necessity. 
You  may  kill  to  save  lif-e  or  limb ;  to  prevent  a  great  and 
atrocious  crime,  —  a  felony  open  and  forcible  ;  and  in  the  dis- 
charge of  a  legal  public  duty.    But  one  man  cannot  be  excused 

1  P.  r.'Lamb,  17  Cal.  323;  Cox  v.  S.,  64  Ga.  374;  1  Hawk.  P.C.  (8th 
ed.)  79. 

2  Ante,  §  64. 

3  P.  V.  Lombard,  17  Cal.  ?16  ;  Coffman  v.  C,  10  Bush  (Ky.).  495;  S. 
V.  Chopin,  10  La.  Ann.  458;  Hard  v.  P.,  25  Mich.  405;  S.  v.  Sloane,  47 
Mo.  604;  S.  v.  Harris,  59  Mo.  550;  Yates  v.  P.,  32  N.  Y.  500;  Stew- 
art v.S.,1  O.  St.  66 ;  Darling  v.  Williams,  35  O.  St.  58  ;  C.  r.  Drum,  58 
Ri.  9;  Pistorius  v.  C,  84  Pa.  158;  Munden  v.  S.,  37  Tex.  353;  U.  S.  v. 
Mingo,  2  Curtis  C.  C.  1,  Fed.  Cas.  No.  15,781.  This  we  think  to  be  the 
law,  by  the  weight  of  authority.  But  there  are  oases  to  the  contrary. 
The  cases  are  collected  and  thoroughly  discussed  in  Wharton,  Homicide, 
§§  493  et  seq. 

*  Ante,  §§  66,  67. 


Sects.  236,  237.]  HOMICIDE.  229 

for  intentionally  killing  another  for  a  mere  trespass  upon  his 
property  .1 

It  is  said  in  some  cases,  that,  if  a  man  be  assaulted  in  his 
dwelling-house,  he  is  not  bound  to  retreat  in  order  to  avoid 
the  necessity  of  killing  his  assailant,  and  that  an  assault  upon 
one  in  his  dwelling-house  is  thus  distinguished  from  an  as- 
sault upon  him  elsewhere.^  This  assault  in  one's  dwelling- 
house  may  be  in  some  sense  ah  assault  upon  the  person 
actually  in  charge.^ 

§  236.  Struggle  for  Life.4  —  Blackstone  ^  approves  the  case, 
put  by  Lord  Bacon,  of  two  persous  being  at  sea  upon  a  plank 
which  cannot  save  both,  and  one  thrusting  the  other  off,  as  a 
case  of  excusable  homicide.  But  it  is  difficult  to  see  where 
one  gets  the  right  to  thrust  the  other  off.  The  right  of  self- 
defence  arises  out  of  an  unlawful  attack  made  on  one's  per- 
sonal security,  not  out  of  accidental  circumstances,  which, 
whether  tlireatening  or  not  to  the  life  of  one  or  more  persons, 
are  in  no  way  attributable  to  the  fault,  or  even  the  agency,  of 
either.  Two  men  may,  doubtless,  under  such  circumstances 
struggle  for  the  possession  of  the  plank  until  one  is  exhausted  ; 
but  neither  can  have  the  right  to  shoot  the  other  to  make  him 
let  go,  because  no  right  of  him  who  shoots  is  invaded. 

§  237.  Accident.  — Homicide  is  also  excusable  where  it 
happens  unexpectedly,  without  intention,  and  by  accident,  or, 
as  the  old  law  has  it,  by  misadventure  in  the  performance  of 
a  lawful  act  in  a  proper  manner  ;  as  where  one  is  at  work 
with  a  hatchet  and  its  head  flies  off  and  kills  a  bystander ;  ^ 
so  if  a  physician,  in  good  faith,  prescribes  a  certain  remedy, 
which,,  contrary  to  expectation  and  intent,  kills  instead  of 

1  S.  V.  Vance,  17  la.  138;  S.  v.  Underwood,  57  Mo.  40;  S.  v.  Pat- 
terson, 45  Vt.  308;  1  Bish.  Cr.  Law,  §  8.')7,  and  cases  there  cited  ;  ante, 
§  229  ;  post,  §  239 ;  Whart.  Horn.,  §§  414  et  seq. 

^  Bohannon  v.  C,  8  Bush  (Ky.),  481 ;  Pond  v.  P.,  8  Mich.  150;  S.  v. 
Martin,  30  Wis.  216. 

3  S.  V.  Patterson,  ante. 

4  Ante,  §  68. 

5  4  Bl.  Cora.  186. 

6  4  Bl.  Com.  182, 


230  CRIMINAL  LAW.  [Sects.  238,  239. 

curing.^  But  if  the  lawful  act  be  performed  in  so  improper  a 
manner  as  to  amount  to  culpable  carelessness,  then  the  homi- 
cide becomes  manslaughter.'-^ 

§  238.  Accident  in  tlie  Course  of  a  Game.^  —  Wliere  death 
ensues  from  accident  in  the  course  of  a  lawful  sport  or  recrea- 
tion, it  is  excusable  homicide.^  But  this  excuse  will  not  avail 
one  who  is  playing  a  hazardous  game,  in  whicli  the  danger  of 
injury  is  great.^  And  if  a  player  deliberately  goes  outside  the 
rules  of  the  game  to  do  an  injury,  or  if  while  within  the  rules 
he  does  an  act  that  he  has  reason  to  suppose  will  do  injury, 
the  fact  that  he  is  playing  a  lawful  game  will  not  excuse  him.^ 

§  239.  Prevention  of  Felony.  -  —  Homicide  in  the  prevention 
of  felony  is  not  strictly  homicide  in  self-defence,  or  in  the  de- 
fence of  property,  but  rests  upon  tlie  duty  and  consequent 
right  whicli  devolves  upon  every  good  citizen  in  the  preserva- 
tion of  order,  and  is  upon  these  grounds  excusable.^  Yet  not 
every  felony  may  be  thus  prevented,  but  only  those  open  felo- 
nies, accompanied  by  violence,  which  threaten  great  public 
injury  not  otherwise  preventable.  Secret  felonies,  unaccom- 
panied by  force,  such,  for  instance,  as  forgery  or  secret  theft, 
and  offences  generally  sounding  in  fraud,  cannot  be  thus  pre- 
vented.^ Even  if  the  crime  about  to  be  committed  do  not 
amount  to  a  felony,  if  it  be  of  such  forceful  character  as  to  be 
productive  of  the  most  dangerous  and  immediate  public  conse- 
quences, —  a  riot,  for  instance,  —  it  is  held  that  death  may  be 
inflicted  even  by  a  private  citizen,  if  necessary  to  prevent  or 
suppress  it.^^     indeed,  a  riot  is  a  sort  of  general  assault  upon 

1  4  BL  Com.  197. 

^  Ibid.  192 ;  mite,  §  231. 

3  A7ite,  §  23. 

4  Foster,  Crown  Law,  3d  ed.  2.59. 

5  Foster,  Crown  Law,  3d  ed.  200 ;  Reg.  v.  Bradshaw,  14  Cox  C  C.  83, 
K.  131. 

^  Reg.  V.  Bradshaw,  ante. 

7  Ante,  §  65. 

8  Pond  V.  P.,  8  Mich.  150. 

9  S.  V.  Moore,  31  Conn.  479  ;  S.  v.  Vance,  17  la.  138 ;  Pond  v.  P.,  ante  ; 
Priester  v.  Angley,  5  Rich.  (S.  C.)  Law,  44. 

10  Patten  v.  F.]  18  Mich.  314. 


Sects.  240-242.]       FALSE  IMPRISONMENT.  —  KAPE.  231 

everybody,  and  so  resistance  may  be  made  upon  the  ground 
of  self-defence. 

FALSE    IMPRISOXMEXT. 

§  240.  False  Imprisonment,  which  consists  in  the  unlawful 
restraint  of  the  liberty  of  a  person,  is  an  indictable  offence  at 
common  law.^  No  actual  force  is  necessary.  The  force  of 
fraud  or  fear  is  sufhcient.  Thus,  to  stop  a  person  on  the 
highway  and  prevent  him  by  threats  from  proceeding,  consti- 
tutes the  offence  ;2  though  it  has  been  held  in  England,  by  a 
divided  court,  that  the  mere  prevention  from  going  in  one 
direction,  while  there  remained  liberty  of  going  in  any  other, 
is  no  imprisonment.^  The  unlawful  confinement  of  a  child 
by  its  parents  is  criminal ;  *  and,  no  doubt,  of  a  prisoner  by  a 
jailer. 

Most  of  the  States  have  now  statutes  upon  the  subject 
under  which  prosecutions  are  had.^ 

RAPE. 

§  241.  Rape  is  the  unlawful  carnal  knowledge  of  a  woman 
by  force,  without  her  consent.^ 

§  242.  Carnal  Knowledge —  Carnal  knowledge,  it  is  now 
generally  held,  both  in  this  country  and  in  England,  is  ac- 
complished by  penetration  without  emission,^  though  it  was 
formerly  doubted  if  both  were  not  necessary, — a  doctrine 
still  held  in  Ohio.^  And  penetration  is  sufficient,  however 
slight.^ 

1  Barber  v.  S.,  13  Fla.  675 ;  C.  v.  Nickerson,  5  All.  (Mass.)  518 ;  Red- 
field  c.  S.,  24  Tex.  133  ;  3  Chitty  Cr.  Law,  835. 

2  Searls  v.  Viets,  2  T.  &  C.  (X.  Y.  S.  C.)  224;  Moses  v.  Dubois,  Dud. 
(S.  C.)  209  ;  Bloomer  v.  S.,  3  Sneed  (Tenu.),  66. 

3  Bird  V.  Jones,  7  Q.  B.  742. 

4  Fletcher  v.  P.,  52  lU.  395. 

5  See  Abduction,  Kidnapping. 

6  See  post,  §  244. 

T  WaUer  v.  S.,  40  Ala.  325 ;  S.  i-.  Hargrave,  65  N.  C.  466 ;  C.  i'.  Sulli- 
van, Add.  (Pa.)  143;  C.  v.  Thomas,  1  Ya.  Cas.  307 ;  St.  9  Geo.  lY,  C.  31. 

8  Blackburn  v.  S.,  22  O.  St.  102. 

9  Reg.  (,'.  Hughes,  2  Moo.  C.  C.  190;  P.  v.  Howard,  143  Cal.  316,  76 
P.  1116;  S.  V.  Hargrave,  ante. 


232  CRIMINAL  LAW.  [Sect.  243. 

The  conclusive  presumption  of  the  common  law  that  a  boy 
under  the  age  of  fourteen  is  incapable  of  committing  rape 
may  have  been  based  upon  the  theory  that  emission  as  well  as 
penetration  was  necessary  to  the  commission  of  the  crime. ^ 

§  243.  Force  and  Violence.  —  The  force  must  be  such  as 
overcomes  resistance,  which,  when  the  woman  has  the  power 
to  e.Kcrt  herself,^  should  be  with  such  vigor  and  persistence  as 
to  show  that  there  is  no  consent.  Any  less  resistance  than 
with  all  the  might  gives  rise  to  the  inference  of  consent.^ 
But  it  would  seem  that  this  is  only  an  inference  of  fact,  and 
that  the  real  question  is  whether  the  intercourse  was  without 
her  consent ;  and  so  long  as  it  is  clear  that  such  was  the  case,  the 
mere  fact  that  she  did  not  resist  to  exhaustion  would  not  pre- 
vent the  crime  from  being  rape.*  Where  there  is  no  resist- 
ance, from  incapacity,  the  only  force  necessary  is  the  force 
of  penetration.  And  fraud  does  not  here,  as  in  some  other 
cases,  supply  the  place  of  force.  If  the  consent  be  procured, 
although  by  fraud,  there  is  no  rape,^ 

But  here,  as  with  assault,  consent  to  one  physical  act  is  no 
justification  for  a  different  one.^     So,  also,   the   distinction 

1  C.  V.  Green,  2  Pick.  (Mass.)  380.  See  also  the  following  cases  hold- 
ing the  presumption  to  be  conclusive :  Reg.  v.  Waite,  L.  R.  2  Q.  B.  600, 
M.  549;  Chism  v.  S.,  42  Fla.  232,  28  So.  399;  S.  u.  Pugh,  7  Jones  (X.  C), 
01 ;  Foster  v.  C,  96  Va.  306,  31  S.  E.  503.  In  some  States  the  presump- 
tion has  been  held  rebuttable  by  proof  of  puberty  :  Gordon  v.  S.,  93.  Ga. 
531,  21  S.  E.  54 ;  Davidson  v.  C,  20  Ky.  L.  R.  540,  47  S.  W.  213 ;  P.  v. 
Randolph,  2  Park.  C  R.  (N.  Y.)  174  ;  Williams  v.  S.,  14  O.  222 ;  Wagoner 
V.  S.,  5  Lea  (Tenn.),  352.     Compare  S.  v.  Jones,  39  La.  Ann.  935,  3  So.  57. 

2  See  §  244. 

3  P.  V.  Brown,  47  Cal.  447;  Taylor  v.  S.,  50  Ga.  79;  C.  v.  McDonald, 
110  Mass.  405;  S.  v.  Burgdorf,  53  Mo.  65;  P.  v.  Dohring,  59  N.  Y.  374. 

*  S.  V.  Shields,  45  Conn.  256,  M.  547;  Austine  v.  P.,  110  111.  248;  An- 
derson V.  S.,  104  Ind.  467,  4  N.  E.  63. 

6  Reg.  V.  Saunders,  8  C.  &  P.  265;  McNair  v.  S.,  53  Ala.  453;  Don 
Moran  v.  P.,  25  Mich.  356,  M.  539 ;  S.  v.  Burgdorf,  ante.  Wyatt  v.  S., 
2  Swan  (Tenn.),  394,  C.  206;  Clark  v.  S.,  30  Tex.  448.  See,  however, 
contra,  Reg.  v.  Dee,  15  Cox  C.  C.  .579  (Irish),  C.  203.  In  some  States  inter- 
course with  a  married  woman  by  personating  her  liusband  has  been  made 
rape  bv  statute  :  S.  v.  Williams,  128  N.  C.  573,  37  S.  E.  952;  Payne  v. 
S.,  38  Tex.  Cr.  R.  494,  43  S.  W.  515. 

6  Reg.  V.  Flattery,  L.  R.  2  Q.  B.  D.  410,  M.  546. 


Sect.  244.]  RAPE.  233 

must  be  remembered  between  a  mere  submission  on  the  one 
hand,  where  the  will  is  overpowered,  and  consent  freely  given 
on  the  other,  even  though  under  a  misapprehension  as  to  the 
facts.  Where  the  will  is  overcome  by  the  force  of  fear,  though 
there  be  no  resistance,  the  offence  may  be  committed.^ 

§  244.  Without  Consent.  —  According  to  the  old  definition, 
the  act  must  be  against  the  will  of  the  woman ;  but  these 
words  are  now  held  to  mean  without  her  consent.^  If  the 
woman  be  in  a  state  of  insensibility,  so  that  she  is  incapable 
of  exercising  her  will,  whether  that  incapacity  is  brought  about 
by  the  act  of  the  accused,  intentionally  or  unintentionally,  or 
by  the  voluntary  act  of  the  woman  herself,  and  the  ravish- 
ment is  effected  with  a  knowledge  of  such  incapacity,  the 
offence  is  committed.^  And  the  same  would  be  true  if  the 
woman  were  idiotic,  insane,  or  asleep.^  Against  the  will,  or 
without  consent,  means  an  active  will. 

By  the  law  of  England,  a  child  under  ten  years  of  age  is 
conclusively  presumed  to  be  incapable  of  consenting,-^  and  the 
same  principle  has  been  laid  down  in  this  country.^  In  almost 
all  States  the  age  of  consent  has  been  fixed  by  statute.  If  the 
girl  is  under  age  the  question  of  her  consent  is  immaterial." 

1  Reg.  V.  Woodhurst,  12  Cox  C.  C.  443;  Pleasant  i-.  S.,  13  Ark.  360; 
P.  r.  Burwell,  106  Mich.  27,  63  N.  W.  986;  P.  v.  Dohring,  .59  X.  Y.  371 ; 
Wright  V.  S.,  4  Humph.  (Tenn.)  194;  Croghan  v.  S.,  22  Wis.  444. 

2  Reg.  V.  Fletcher,  10  Cox  C.  C.  248;  Reg.  v.  Barrow,  11  Cox  C.  C 
191 ;  C.  V.  Burke,  105  Mass.  376 ;  compare  post,  §  247. 

3  Reg.  V.  Champlin,  1  Den.  C.  C.  89;  Reg.  v.  Barrett,  12  Cox  C.  C. 
498  ;  C.  V.  Burke,  ante. 

*  Ibid.;  Reg.  v.  Fletcher,  8  Cox  C.  C.  131  ;  Reg.  v.  Mayers,  12  Cox  C. 
C.  311,  1  Green's  Cr.  Law  Rep.  317,  and  note;  Gore  v.  S.,  119  Ga.  418, 
46  S.  E.  671 ;  S.  v.  Cunningham,  100  Mo.  382,  12  S.  W.  376.  Compare 
Cross  well  r.  P.,  18  Mich.  427. 

5  1  Bl.  Com.  212. 

6  Gosha  V.  S.,  56  Ga.  86 ;  P.  v.  McDonald,  9  Mich.  150.  So  a  girl  of 
twelve,  S.  V.  Miller,  42  La.  Ann.  1186,  8  So.  309. 

7  C.  V.  Roosnell,  143  Mass.  32,  8  X.  E.  747.  C.  212;  P.  v.  Goulette,  82 
Mich.  86,  45  N.  W.  1124 ;  S.  v.  Wright.  2.5  Xeb.  38,  40  X.  W.  596  :  Far- 
rell  V.  S  .,  54  X.  J.  L.  416,  24  Atl.  723  ;  Loose  v.  S.,  120  Wis.  115,  97  X. 
W.  526.  Compare  P.  (.'.  Wilmot,  139  Cal.  103,  72  P.  838.  For  assault 
with  intent  to  rape  see  ante,  §  208. 


234  CRIMINAL   LAW.  [Sects.  24.5,  246. 


ROBBERY. 


§  245.  Hobbery  is  larceny  from  the  person  or  personal 
presence  by  force  and  violence  and  putting  in  fear.i 

What  constitutes  larceny,  what  may  be  stolen,  and  what 
constitutes  ownership,  that  the  taking  must  be  felonious, 
against  the  will  or  without  the  consent  of  the  owner,  and  with 
intent  to  deprive  him  of  his  property,  will  be  shown  under  the 
title  of  Larceny.2  We  are  now  to  consider  the  additional 
circumstances  which  elevate  larceny  into  robbery. 

§  246.  Force  and  Violence.  —  There  must  be  force  and 
violence  or  putting  in  fear,  and  this  force  and  violence  or 
putting  in  fear  must  be  the  means  by  which  the  larceny  is 
effected,  and  must  be  prior  to  or  simultaneous  with  it.  If  the 
larceny  is  effected  first,  and  the  fear  or  force  is  applied  after- 
wards for  the  purpose  of  enabling  the  thief  to  retain  possession 
of  his  booty,  or  for  any  other  purpose,  there  is  no  robbery.^ 

While  mere  snatching  from  the  hand  or  picking  from  the 
pocket  of  a  person  will  be  but  larceny  from  the  person,*  if,  in 
addition  to  the  force  used  in  merely  taking  possession  of  the 
property,  any  force  is  used  to  overcome  the  resistance  of  the 
possessor,  the  crime  is  robbery .^  So  it  seems  to  be  the  law 
that,  if  the  article  be  attached  to  the  person,  and  the  force 
be  such  as  to  break  the  attaclunent  or  to  injure  the  person 
from  whom  the  property  is  taken,  as  where  a  steel  or  silk 
chain  attached  to  the  stolen  watch  and  around  the  neck  was 
broken,*^  or  a  lady's  ear  from  which  a  ring  was  snatched  was 

1  C.  V.  Holland,  1  Duv.  (Ky.)  182;  C.  v.  Humphries,  7  Mass.  242  ; 
S.  V.  Gorham,  .55  N.  H.  152. 

2  Post,  §  270. 

8  Harraan's  Case,  1  Hale  P.  C.  534;  Rex  v.  Francis,  2  Str.  1015;  Rex 
V.  Gnosil,  1  C.  &  P.  304;  Thomas  v.  S.,  91  Ala.  31,  9  So.  81 ;  Jackson 
V.  S.,  114  Ga.  826,  40  S.  E.  1001. 

4  Post,  §  293 ;  Colby  v.  S.  (Fla.),  35  So.  189  ;  S.  v.  Doyle,  77  Ga.  513; 
Spencer  v.  S.,  106  Ga.  692,  32  S.  E.  819;  contra,  Jones  v.  C,  23  Ky.  L. 
R.  2081,  66  S.  W.  633. 

5  Williams  v.  C,  20  Ky.  L.  R.  1850,  50  S.  W.  240. 

«  Rex  r.  Mason,  R.  &  R.  419;  S.  v.  McCune,  5  R.  I.  60;  contra, 
Bowlin  V.  S.  (Ark.),  81  S.  AV.  838. 


Sect.  247.] 


ROBBERY.  235 


torn,  the  offence  is  robbery,  and  not  merely  larceny  from 
the  person.i  So,  if  there  is  a  struggle  for  the  possession  of 
the  property  between  the  thief  and  the  ovvner.^  So,  also,  if 
force  be  applied  for  the  purpose  of  drawing  off  the  attention 
of  the  person  being  robbed.^ 

The  force  must  be  used  with  the  intent  of  accomplishing 
the  larceny.  Where  a  wound  was  unintentionally  inflicted  on 
the  hand  of  the  owner  of  a  basket,  the  intent  being  simply  to 
cut  the  basket  from  behind  the  owner's  wagon,  the  crime  is 
simple  larceny,  not  robbery.* 

§  247.  Putting  in  Fear.  —  Neither  actual  violence  nor  the 
fear  of  actual  violence  is  necessary  to  constitute  the  offence. 
The  putting  in  fear  is  using  a  certain  kind  of  force,  or  con- 
structive violence.^  Fear  of  personal  injury  is  enough,  as 
where  there  is  a  threat  to  shoot,  or  strike  with  a  dangerous 
weapon,  or  in  some  other  way  inflict  personal  injury,  even 
though  it  be  in  the  future.^  Time,  place,  and  circumstance, 
as  by  the  gathering  about  of  a  crowd  apparently  sympathizing 
with  the  thief,  and  showing  that  resistance  would  be  vain,^ 
are  to  be  taken  into  account  in  determining  whether  this  fear 
exists.^  But  the  fear  induced  by  a  threat  to  injure  one's 
character,  or  to  deprive  him  of  a  situation  whereby  he  earns 
his  living,  is  also  enough. ^  It  is  said,  however,  that  the  fear 
of  injury  to  character,  and  consequent  loss  of  means  of  live- 
lihood, has  never  been  held  sufficient,  except  in  cases  where 

1  Rex  V.  Lapier,  2  East  P.  C.  557. 

2  Davies's  Case,  1  Leach  Cr.  L.  (4th  ed.)  290,  n. ;  S.  v.  Broderick,  59 
Mo.  318.     But  see  S.  v.  John,  5  Jones  (N.  C),  163. 

3  Anon.,  ILewin,  300;  Snyder  i-.C,  21  Ky.  L.  R.  1538,  55  S.  W.  679; 
Mahoney  v.  P.,  5  T.  &  C.  (N.  Y.)  329;  C.  v.  Snelling,  4  Binn.  (Pa) 
379. 

4  Reg.  V.  Edwards,  1  Cox  C  C,  32. 

5  Donnally's  Case,  1  Leach  Cr.  L.  (4th  ed.)  193;  Long  v.  S.,  12  Ga. 
293. 

6  S.  r.  Howerton,  58  Mo.  581. 

7  Hughes's  Case,  1  Lew  in,  301;  Rex  i'.  Taplin,  2  East  P.  C.  712. 

8  Long  V.  S.,  ante. 

9  Rex  V.  Egerton,  R.  &  R.  375;  Rex  v.  Gardner,  1  C.  &  P.  479  ;  P.  v. 
McDaniels,  1  Park.  C.  R.  (N.  Y.)  198. 


236  CRIMINAL  LAW.  [Sect.  247. 

the  threat  was  to  charge  with  the  crime  of  sodomy,^  and  the 
cases  cited  in  the  last  preceding  footnote  are  of  this  character.^ 
So,  also,  it  has  been  said  that  fear,  induced  by  the  threatened 
destruction  of  a  child,  is  sufficient.^  And  there  seems  to  be 
no  doubt  that  fear  induced  by  threats  to  destroy  one's  prop- 
erty, as  by  threats  of  a  mob  to  pull  down  one's  house,  is  suf- 
ficient,'' this  act  being  of  a  kind  to  threaten  one's  bodily 
safety.  So  with  the  exception  of  the  sodomy  cases,  which 
must  be  regarded  as  anomalous,  it  w^ould  seem  that  the  fear 
inspired  must  be,  directly  or  indirectly,  of  a  bodily  harm.^ 
The  same  distinction  exists  in  the  cases  of  false  arrests.  If 
A  threatens  to  arrest  B,  and  the  latter,  to  buy  him  off,  gives 
the  pretended  officer  money,  this  has  been  lield  not  to  be  rob- 
bery.*^ But  where  the  giving  up  of  the  property  was  because 
of  fear  of  bodily  harm  induced  by  the  defendant,  the  fact  that 
he  w^as  at  the  time  pretending  to  be  an  officer  would  render  it 
none  the  less  robbery." 

It  is  sometimes  said  that  the  element  of  fear  must  exist  in 
every  case  in  order  to  constitute  the  crime  of  robbery.^  But 
there  may  be  cases  where  there  seems  to  be  no  op])ortunity  for 
the  action  of  fear ;  as  wdiere  one  is,  without  warning,  knocked 
senseless  by  a  single  blow,'^  or  is  not  aware  of  the  purpose 
and  has  actually  no  fear,  that  being  only  a  diversion  of  the 
force  wdiich  is  used,^*^  or  is  already,  when  assaulted,  in  such  a 

1  Rex  V.  Wood,  2  East  P.  C.  732;  Long  r.  S.,  12  Ga.  293  ;  Britt  v.  S., 
7  Humph.  (Teim.)  45. 

-  Compare  Rex  v.  Edwards,  5  C.  &  P.  51S;  Thompson  o.  S.,  61  Neb. 
210,  85  N.  W.  62. 

3  Hatham,  B.,  in  Donnally's  Case,  1  Leach  Cv.  L.  (4th  ed.)  193;  Eyre, 
C.  J.,  Reane's  Case,  2  Leach  Cr.  L.  (4th  ed.)  616. 

4  Rex  V.  Astley,  2  East  P.  C.  729;  Rex  i:  Wiiikworth,  4  C.  &  P.  444. 

5  See  2  Bish.  New  C.  L.,  §§  1171  et  seq. 

®  Rex  V.  Kuewland,  2  Leach  (3d  ed.),  833  ;  Simmons  r.  S.,  41  Fla. 
316,  25  So.  881 ;  Perkins  v.  S.,  65  Ind.  317. 

7  McCormick  v.  S.,  26  Tex.  App.  678,  9  S.  W.  277  ;  Williams  v.  S. 
(Tex.),  55  S.  W.  500. 

8  1  Hawk.  P.  C.  (8th  ed.)  214. 

9  Foster  C.  L.  128;  McDaniel  v.  S.,  8  S.  &  ]\L  (Miss.)  401. 

10  Mahoney  o.  P.,  5  T.  &  C.  (N.  Y.)  329 ;  C.  v.  Snelling,  4  Binn.  (Pa.) 
379. 


Sect.  248.]  ROBBERY.  237 

state  of  insensibility  as  to  be  incapable  of  fear ;  ^  and  the 
weight  of  authority,  both  ancient  and  modern,  is  that  it  need 
not  be  alleged  in  the  indictment  under  the  common  law.^ 
And  those  courts  which  hold  that  fear  is  necessary  make  the 
force  which  would  ordinarily  excite  fear  conclusive  evidence 
of  it.3 

The  cases  just  cited  also  show  that  "  against  the  will " 
means  without  consent.*  Where  three  parties  get  up  a  pre- 
tended robbery  for  the  sake  of  obtaining  a  reward,  the  taking 
is  not  against  the  will,  or  without  consent.^  Nor  is  it  where 
the  property  is  parted  with  for  the  purpose  of  making  a  case 
for  prosecution.^ 

§  248.  The  Taking  must  be  from  the  person,  or  from  the 
personal  presence.  Thus,  if  a  man  assaults  another,  and, 
having  put  him  in  fear,  drives  away  his  cattle  from  the  pas- 
ture '  in  his  presence,  or  picks  up  a  purse  from  the  ground, 
where  it  had  fallen  or  been  thrown  into  a  bush  during  the 
scuffle,  the  taking  is  complete.^  The  question  is,  whether  the 
chattel  at  the  time  it  was  taken  was  under  the  protection  of 
the  person.^  But  the  possession  of  the  robber,  if  complete, 
need  be  only  momentary ;  and  if  it  be  immediately  taken 
away  from  him,  it  is  still  robbery.^*^  Though  the  thief  obtain 
possession  by  delivery  from  the  owner,  as  where  he  points 
a  pistol,  and  either   directly  demands  money,!^  or  demands 

1  Bloomer  v.  P.,  1  Abb.  Ap.  Dec.  (N.  Y.)  U6. 

2  Dounally's  Case,  1  Leach  Cr.  L.  (4th  ed.)  193;  Rex  v.  McDaiiiel, 
Foster  C.  L.  121,  K.  259;  C.  v.  Humphries,  7  Mass.  242;  S.  v.  Broderick, 
59  Mo.  818  ;  S.  v.  Gorham,  55  N.  H.  152. 

3  Reane's  Case,  2  Leach  Cr.  L.  (4th  ed.)  616 ;  Long  v.  S.,  12  Ga.  293  . 
*  See  also  Larceny,  post,  §  270. 

5  Rex  V.  McDaniel,  ante. 

6  Bex  V.  Fuller,  R.  &  R.  408. 

7  1  Hawk.  P.  C.  (8th  ed.)  214. 

8  2  East  P.  C.  707;  1  Hale  P.  C.  533;  Long  v.  S.,  mife ;  Crews  v.  S.,  3 
Cold.  (Tenn.)  350;  U.  S.  v.  Jones,  3  Wash.  C.  Ct.  209,  Fed.  Cas.  No. 
15,494. 

9  Reg.  V.  Selway,  8  Cox  C.  C.  235 ;  S.  v.  Kennedy,  154  Mo.  268,  55 
S.  W.  293. 

10  Peat's  Case,  1  Leach  Cr.  L.  (4th  ed.)  228. 
"  Norden's  Case,  Foster  C.  L.  129. 


238  CRIMINAL  LAW.  [Sect.  248. 

it  under  pretence  of  asking  alms,^  even  after  having  ceased  to 
resort  to  force,^  —  the  delivery  in  each  case  being  induced  by 
fear,  — it  is  a  taking  within  the  meaning  of  the  law,  and  he 
is  in  each  case  guilty  of  robbery.  And  so  may  a  forced  sale 
be  robbery,  where  the  delivery  is  obtained  by  fear,^  if  the  full 
value  be  not  given  in  return  for  the  property  taken.'*  And 
where  a  man  who  is  attempting  rape,  to  whom  the  woman 
jrives  monev  to  induce  him  to  desist,  continues  his  assault,  he 
is  guilty  of  robbery.^ 

1  1  Hale  P.  C.  533. 

2  Hawk.  P.  C.  (8th  ed.)  214,  §  7. 

3  Rex  V.  Simons,  2  East  P.  C.  712. 

4  Fisherman's  Case,  2  East  P.  C.  661,  M.  807;  4  Bl.  Com.  244. 
6  Rex  V.  Blackham,  2  East  P.  C.  711. 


Sects.  249,  250.]    OFFENCES  AGAINST  A  DWELLING-HOUSE.     239 


CHAPTER   YII. 

OFFENCES    AGAINST    A   DWELLING-HOUSE. 
§  250.     Arson.  |  §  256.     Burglary. 

§  249.  Protection  of  a  Dwelling-house.  —  The  law  gives  a  spe- 
cial protection  to  a  dwelling-house,  as  a  man's  castle,  within 
which  it  is  for  the  public  interest  that  he  should  be  protected. 
We  have  already  seen^  that  when  attacked  in  his  dwelling- 
honse,  a  man  may  take  life  to  keep  out  the  intruders.  In  ad- 
dition to  this  measure  of  protection,  the  common  law  punishes 
certain  violations  of  the  protection  of  a  dwelling.  Two  im- 
portant crimes  are  of  this  sort :  arson  and  burglary. 

ARSOX. 

§  250.  Arson  is  the  malicious  burning  of  another's  dwelling- 
house. 

It  is  an  offence  against  the  security  afforded  by  a  man's 
dwelling-house ;  and  the  law  looks  upon  it  in  this  light,  rather 
than  as  an  injury  to  his  property.  It  regards  the  violation  of 
the  sanctity  of  one's  abode  as  a  much  graver  offence  than  the 
mere  injury  to  his  property,  just  as  it  regards  the  larceny  of 
a  watch  from  the  person  or  from  a  building  as  a  graver  offence 
than  the  simple  larceny  of  the  watch  without  these  attendant 
circumstances.^  The  property  protected  is  the  house,  not  its 
materials ;  it  is  not  arson  to  pull  down  a  house  and  then  set 
fire  to  the  pile  of  lumber.^ 

1  A  nte,  §  67. 

2  P.  r.  Gates,  15  Wend.  (X.  Y.)  1.59. 

8  Mulligan  v.  S.,  25  Tex.  App.  199;  Landers  v.  S.,  39  Tex.  Cr.  R. 
671,  47  S.  W.  1008. 


240  CRIMINAL  LAW.  [Sects.  251,  252. 

S  251.  What  ''Dwelling-house"  Embraces.  —  At  common  law 
the  term  "  dwelling-liouse  "  embraced  all  outhouses  within  the 
same  curtilage,  and  used  as  part  and  parcel  of  the  residence, 
though  not  under  the  same  rooi.^  Curtilage  means  an' enclos- 
ure of  a  piece  of  land  around  a  dwelling-house,  usually  includ- 
in«i-  the  buildings  occupied  in  connection  with  the  use  of  the 
dwelling-house,  whether  the  enclosure  be  made  by  a  fence  or 
by  the  buildings  themselves  ;^  and  a  barn,  the  front  of  which 
forms  part  of  the  division  fence,  is  within  the  curtilage.^ 

S  252.    Dwelling-house.     Ownership Simply  burning  one's 

own  house  is  not  arson,  nor  any  offence,  at  common  law,  un- 
less it  be  accompanied  by  a  design  to  injure.*  So  where  the 
property  is  burned  by  a  third  person  at  the  request  of  tlie 
owner  the  crime  is  not  committed.^  But  by  statute  in  some 
of  the  States  the  wilful  and  malicious  burning  of  any  building 
is  made  punishable  ;  and  in  such  case  the  owner  may  be  guilty 
of  the  offence  by  burning  his  own  barn.^  He  may  be  said  to 
own  the  house  who  has  the  right  of  present  possession,  as  the 
lessee  or  mortgagor  before  foreclosure."  A  husband  is  not 
guilty  of  the  crime  who  burns  the  house  which  he  jointly  occu- 
pies as  tenant  by  the  curtesy  with  his  wife,  who  owns  the  fee ; 
nor  the  wife  who  sets  fire  to  her  husband's  house  ;  ^  though  a 
widow  whose  dower  has  not  been  assigned,  and  who  has  no 
present  right  of  possession,  the  house  being  occupied  by  a 
tenant,  may  be  guilty  of  it.  So  of  a  reversioner,  who  burns 
the  house  before  the  tenant's  right  of  occupation  has  expired.^ 

1  4  Bl.  Com.  2Ln. 

2  C.  V.  Barney,  10  Cush.  (Mass.)  478;  P.  ;;.  Taylor,  2  Mich.  250 ;  post, 
Burglary;  Bishop,  Stat.  Crimes,  §§  277  et  seq. 

3  Washington  v.  S.,  82  Ala.  31,  2  So.  356.  Compare  Curkendall  v. 
P.,  36  Mich.  309. 

4  Bloss  V.  Tobey,  2  Pick.  (Mass.)  320. 

6  Heard  v.  S.,  81  Ala.  55,  1  So.  640;  C.  v.  Makely,  131  Mass.  421. 
6  S.  V.  Kurd,  51  N.  H.  176.     See  also  Shepherd  v.  P.,  19  N.  Y.  537. 
'  Rex  V.  Pedley,  1  Leach  Cr.  L.  (4th  ed.)  242;  Rex  v.  Spalding,  1 
Leach  Cr.  L.  (4th  ed.)  218;  P.  o.  Van  Blarcum,  2  Johns.  (N.  Y.)  105. 

8  Rex  V.  March,  1  Moo.  182,  C.  484;  Snyder  v.  P.,  26  Mich.  106.  But 
in  Indiana  it  is  held  that  under  the  statute  the  wife  is  guilty  of  arson  who 
burns  her  husband's  house.    Emig  v.  Daura,  1  Ind.  App.  146,  27  N.  E.  322. 

9  Reg.  V.  Harris,  Post.  Cr.  Law,  113,  M.  928. 


Sect.  253.]  ARSON.  241 

A  servant,  though  living  in  the  house,  yet  having  no  right  of 
possession,  may  commit  the  crime ;  ^  but  a  tenancy  for  a  year, 
or  any  special  ownership  which  carries  with  it  the'  right  of 
possession  at  the  time  of  the  burning,  is  sufficient  to  exempt 
from  guilt.^ 

§  253.  Dwelling-house.  Occupation.  —  The  building  will  be 
considered  a  dwelling-house  within  tlie  meaning  of  the  law,  if 
actually  occupied  as  such,  though  it  may  not  have  been  erected 
for  that  purpose,  and  may  also  be  occupied  for  other  purposes, 
as  for  a  jail,  or  a  building  occupied  in  part  as  a  lodging- 
house.^  So  where  part  of  the  building  is  used  as  a  store, 
if  the  rest  is  used  as  a  dwelling-house,  it  may  be  the  subject 
of  arson.*  It  must  be  in  some  substantial  sense  an  occupied 
house,  and  that,  by  the  person  alleged  to  be  the  owner.  It  is 
not  necessary  that  he  should  be  actually  present  in  the  house 
at  the  time  of  the  burning.  If  the  house  contain  the  occu- 
pant's effects,  and  he  has  the  design  to  return,  after  a  tempo- 
rary absence,  this  is  a  sufficient  occupation  to  constitute  it  a 
dwelling-house.^  Mere  ownership,  without  occupancy  by  the 
owner,  is  not  sufficient.^  Nor  is  the  fact  that  it  is  habitable, 
and  intended  for  occupancy,  unless  it  is  also  in  some  sense 
used  as  a  place  of  residence.'  It  must  be  a  completed  house, 
ready  for  occupancy,  and  not  an  abandoned  one,  unlit  for 
habitation.^ 

1  Rex  I'.  Gowen,  2  East  P.  C.  1027,  M.  930. 

2  Holme's  Case,  Croke  Car.  376;  S.  r.  Young,  139  Ala.  136,  36  So.  19; 
S.  V.  Lyon,  12  Conn.  487;  McXeal  v.  Woods,  3  Blackf.  (Ind.)  48.1;  P.  ;;. 
Gates,  15  Wend.  (N.  Y.)  159;  2  East  P.  C.  1022  ;  contra:  Kelley  v.   S., 

44  Tex.  Cr.  R.  187,  70  S.  W.  20  (statutory).     See  also  post,  Burglary. 

3  P.  r.  Orcutt,  1  Park.  (N.  Y.)  C.  R.  252;  P.  v.  Cotteral,  18  Johns. 
(X.  Y.)  115;  Smith  v.  S.,  23  Tex.  App.  3.57.  See  however,  contra,  Jenk- 
ins V.  S.,  53  Ga.  33. 

4  S.  V.  Jones,  171  Mo.  401,  71  S.  W.  680. 

6  S.  V.  Toole,  29  Conn.  342;  Johnson  v.  S.,  48  Ga.  116. 

6  Hicks  V.  S.,  43  Fla.  171,  29  So.  631;  C.  v.  Barney,  10  Cush.  (Mass.) 
478. 

7  S.  V.  Warren,  33  Me.  30;  Hooker  v.  C.,13  Grat.  (Va.)  763. 

8  Elsmore  i'.  St.  Briavels,  8  B.  cSc  C.  461;  S.  v.  McGowen,  20  Conn. 
245;  P.  V.  Handley,  93  Mich.  46,  52  N.  W.  1032.     See  also  McGary  v.  P., 

45  N.  Y.  153. 

16 


242  CRIMINAL  LAW.  [Sect.  254. 

§  254.  Malice.  —  The  malice  requisite  to  constitute  the 
crime  is  that  general  malice  which  accompanies  a  criminal 
purpose.  Carelessness  or  negligence,  without  a  specific  intent 
unlawfully  to  burn  or  to  do  some  other  wrong,  does  not  con- 
stitute the  malice  which  is  an  essential  ingredient  in  the  crime 
of  arson.i  But  when,  intending  to  burn  the  house  of  one,  the 
accused  burns  the  house  of  another,  the  crime  is  committed. 
Arson  being  intended  and  committed,  it  is  not  permissible  that 
the  guilty  party  should  escape  the  consequences  by  alleging 
his  mistake  as  to  one  of  the  varying  incidents  of  the  crime. 
So  far  as  the  public  offence  is  concerned,  it  is  immaterial 
whether  the  house  burned  be  that  of  one  person  or  another.^ 
And  one  may  be  guilty  of  arson  by  setting  fire  to  his  own 
house,  whereby  the  house  of  another  is  burned,  if  the  proxim- 
ity was  such  that  the  burning  of  the  latter  was  the  natural  and 
probable  consequence  of  burning  the  former.^  If  the  burning 
accomplished  was  not  with  a  felonious  intent,  but  for  a  pur- 
pose which  if  accomplished  would  constitute  a  crime  of  a  grade 
below  a  felony,  —  as  where  a  prisoner  sets  fire  to  the  jail  in 
which  he  is  confined  with  the  purpose  of  thereby  effecting  his 
escape,  —  this,  it  has  been  held  is  not  arson,  if  the  attempt  to 
escape  is  only  a  misdemeanor.*  But  the  contrary  has  been  lield 
in  Alabama  ;^  and  in  England  a  person  who  set  the  fire  for  the 
purpose  of  getting  the  reward  offered  for  the  earliest  infor- 
mation of  it  was  held  guilty  of  arson.*^ 

Tlie  cases  upon  this  point,  however,  seem  to  be  wholly  irrec- 
oncilable. Where  there  is  the  intent  to  burn  coincident  with 
the  act  of  burning,  the  crime  seems  to  be  complete,  upon  gen- 
eral and  well-settled  principles  and  according  to  every  defini- 
tion ;  and  the  fact  that  the  burning  was  the  secondary  rather 
than  the  primary  purpose,  —  a  felonious  means  to  an  unlawful 

1  4  Bl.  Com.  222. 

2  1  Hale  P.  C.  569;  1  Hawk.  P.  C.  (8th  ed.)  139,  §  15. 
8  Rex  V.  Isaac,  2  East  P.  C.  1031. 

4  P.  V.  Cotteral,  18  Johns.  (X.  Y.)  115 ;  S.  v.  Mitchell,  5  Ired.  (N.  C.) 
350;  Delany  v.  S.,  41  Tex.  601. 

5  Luke  r.  S.,  49  Ala.  30. 

6  Reg.  V.  Regan,  4  Cox  C.  C.  335,  M.  141. 


Sect.  255.]  ARSON.  243 

but  not  felonious  end,  —  does  not  seem  to  relieve  it  in  any  re- 
spect or  degree  of  its  criminality.  It  sounds  strangely,  and 
seems  not  in  accordance  with  sound  reason  or  public  policy 
that  one  who  intentionally  commits  a  felony  and  a  misde- 
meanor, the  former  as  a  step  toward  the  latter,  shall  be 
deemed  less  guilty  than  he  would  have  been  if  the  commission 
of  the  felony  had  been  his  sole  purpose,  and  he  had  committed 
no  misdemeanor.!  The  failure  to  observe  the  distinction  be- 
tween intent  and  motive,  the  former  of  which  qualifies  the  act, 
while  the  latter  moves  to  it,^  has  doubtless  led  to  the  confu- 
sion. The  man  who  deliberately  sets  fire  to  and  burns  a  jail 
intends  to  burn  it,  whether  his  motive  be  self-sacrifice,  revenge, 
escape,  or  reward.^  The  case  might  be  different  if,  while  a 
party  is  stealing  in  a  building,  he  accidentally,  by  dropping  a 
match,  sets  fire  to  the  building.  It  has  been  recently  held  in 
Ireland  that  this,  if  done  on  board  a  vessel,  would  not  come 
within  a  statute  punishing  the  malicious  burning  of  a  vessel,* 
But  it  might  be  doubtful,  in  case  of  arson,  if  there  is  any  malice 
or  evil  intent  in  the  crime  intended,  —  if  it  be  not  a  mere  malum 
jyroidhitum.^ 

§  255.  Burning  means  an  actual  combustion  of  some  portion 
of  the  house,  so  that  the  wood  is  actually  on  fire.  It  is  suffi- 
cient if  it  is  charred.  It  is  not  necessary  that  it  be  consnraed 
or  destroyed  ;^  but  mere  scorching  is  not  enough.'^ 

1  See  1  Bish.  New  Cr.  Law,  §§  323-345;  2  ihid.,  §§  14,  15. 

2  J?jie,  §§26,  32. 

3  Reg.  V.  Regan,  4  Cox  C.  C.  335,  M.  141. 

4  Reg.  V.  Faulkner,  13  Cox  C.  C.  550,  C.  106,  K.  152. 

5  2  Russ  on  Crimes  (5th  ed.),  906. 

«  Reg.  V.  Parker,  9  C.  &  P.  45;  Mary  v.  S.,  24  Ark.  44 ;  P.  v.  Haggertv, 
46  Cal.  354;  S.  v.  Spiegel,  111  la.  701,  83  K  W.  722;  C.  v.  Tucker,  110 
Mass.  403;  P.  v.  Butler,  16  Johns.  (N.  Y.)  203;  S.  v.  Sandy,  3  Ired. 
(N.  C.)  570.  The  statutes  of  most  if  not  all  of  the  States  have  modified 
the  common  law  of  arson  to  a  greater  or  less  extent;  and  while  decisions 
will  be  found  apparently  inconsistent  with  the  principles  stated  in  the 
text,  it  will  doubtless  be  found  that  such  decisions  depend  upon  the 
peculiarities  of  the  respective  statutes. 

'  Reg.  V.  Russell,  C.  &  M.  541,  M.  931;  Woolsey  v.  S.,  30  Tex.  App. 
346,  17  S.  W.  546. 


214  CRIMINAL  LAW.  [Sects.  256,  237. 

BURGLARY. 

§  256.  Burg^lary  is  the  breaking  and  entering  of  another's 
dwelling-house  in  the  night-time,  with  intent  to  commit  a 
felony  therein.^  The  breaking  may  be  actual  or  constructive. 
If  there  is  neither  force  nor  fraud  there  is  no  burglary.'-^ 

§  257.  Actual  Breaking  takes  place  when  any  apartment  of 
the  house  is  broken  into  by  force ;  as  by  lifting  a  latch,  or 
sliding  a  bolt,^  or  turning  a  lock  or  a  button,^  or  the  fastening 
of  a  window,  or  breaking  or  removing  a  pane  of  glass,  or 
lifting  up  or  pulling  down  an  unfastened  window-saslr^  or 
trap-door,  or  pulling  open  a  sash  which  swings  on  'hinges, 
or  opening  a  door  whether  held  in  place  by  friction^  or  by  a 
spring,'^  or  removing  a  piece  of  wood  which  keeps  the  door  in 
place  ^  or  cutting  out  a  netting  of  twine  which  is  fastened  over 
an  open  window,  or  removing  a  screen,^  or  opening  the  outside 
shutters.  The  offence  consists  in  violating  the  common  se- 
curity of  the  dwelling-house.  It  is  immaterial  whether  the 
doors  and  windows  are  fastened  or  unfastened,  provided  the 
house  is  secured  in  the  ordinary  way,  and  is  not  left  so  care- 
lessly open  as  to  invite  an  entry .i*^  But  leaving  the  door  or 
window  ajar,  or  unclosed  even  to  a  slight  degree,  and  not  so 
far  as  to  admit  the  body,  would  constitute  such  an  invitation, 
so  that  opening  them  further  would  not  amount  to  a  burglari- 
ous breaking ;  ^^  and  entry  through  an  open  transom  is  not  a 

1  1  Hawk.  P.  C.  (8th  ed.)  129. 

2  St.  Louis  V.  S.  (Tex.),  59  S.  W.  889. 

8  S.  V.  O'Brien,  81  la.  93,  46  N.  W.  861. 

4  S.  V.  Helms,  179  Mo.  280,  78  S.  W.  592. 

5  Rex  r.  Hyams,  7  C.  &  P.  441,  M.  909;  S.  v.  Boon,  13  Ired.  (N.  C.) 
244. 

«  S.  V.  Reid,  20  la.  413 ;  Finch  v.  C,  14  Grat.  (Va.)  643. 

7  S.  r.  Connors,  95  la.  485,  64  N.  W.  295. 

8  S.  V.  PoweU,  61  Kan.  81,  58  P.  968. 

9  S.  V.  Herbert,  63  Kan.  516,  66  P.  235.     • 

10  Rex  V.  Haines,  R.  &  R.  C.  C.  451 ;  Rex  v.  Russell,  1  Moo.  C.  C.  377, 
2  Lead.  Cr.  Cas.  48,  and  note;  Pressley  v.  S.,  Ill  Ala.  34,  20  So.  647;  C. 
V.  Stephenson,  8  Pick.  (Mass.)  354.  Compare  Minter  v.  S.,  71  Ark.  178, 
71  S.  \V.  944. 

"  Rex  V.  Smith,  1  Moo.  C.  C.  178;    Green  v.  S.,  68  Ala.  539;   C.  v. 


Sects.  258,  259.]  BURGLARY.  245 

breaking  1  though  lifting  an  unfastened  transom  which  swings 
upward  is  a  breaking.^  It  is  also  held  that  entering  a  house 
by  way  of  the  chimney,  or  even  getting  into  the  chimney,  is  a 
breaking,  though  no  actual  force  is  used,  since  it  is  not  usual 
to  secure  such  an  opening,  and  the  house  is  as  much  closed 
as  is  reasonable  or  requisite.^ 

§  258.  Constructive  Breaking. —  A  constructive  breaking  is 
where  fraud  or  threats  are  substituted  for  force,  whereby  an 
entry  is  effected  ;  as  where  entrance  is  procured  by  conspiring 
with  persons  within  the  house;'*  or  by  pretence  of  hiring 
lodgings,  obtaining  refreshment,  or  other  business;^  or  under 
color  of  legal  process  fraudulently  obtained;^  or  by  enticing 
the  owner  out  of  his  house,  if  the  entry  be  made  immediately, 
and  before  the  owner's  family  have  time  to  shut  tlie  door." 
So  where  defendant  secreted  himself  in  a  box,  which  he  pro- 
cured to  be  put  in  an  express  car  by  the  agent  of  the  express 
company  this  was  held  a  breaking  of  the  car.^ 

§  259.  Breaking.  Connivance  or  Consent. —  But  if  the  owner, 
being  apprised  by  his  servant  of  a  plan  to  rob  the  house,  gives 
his  servant  the  keys,  ^vith  instructions  to  carry  out  the  plan, 
and  the  servant  and  the  prisoner  go  together  into  the  house, 
the  servant  unlocking  the  door,  this  is  said  to  be  no  burglary, 
as  the  act  is  by  the  owner's  consent;^  though  if  the  owner, 

Strupney,  105  Mass.  588.     Compare  P.  i-.  Dupre,  98  Mich.  26,  56  N.  W. 
1046,  m'.  909. 

1  McGrath  v.  S.,  25  Neb.  780,  41  N.  W.  780. 

2  TimmoDS  v.  S.,  34  O.  St.  426. 

3  Rex  v.  Brice,  R.  &  R.  C.  C.  4.50,  M.  911 ;  Walker  v.  S.,  52  Ala.  376; 
S.  V.  Willis,  7  Jones  (N.  C),  190. 

4  2  East  P.  C.  486 ;  S.  v.  Rowe,  98  X.  C.  629,  4  S.  E.  506. 

5  2  East  P.  C.  486 ;  Le  Mott's  Case,  Kel.  42,  M.  913 ;  S.  v.  Mordecai, 
68  N.  C.  207;  S.  v.  Foster,  129  N.  C.  704,  40  S.  E.  209;  Johuston  v.  C, 
85  Pa.  54. 

6  Rex  V.  Farre,  Kel.  43;  S.  v.  Johnson,  Ph.  (N.  C.)  186. 

7  S.  V.  Henry,  9  Ired.  (N.  C.)  463.  But  see  opinion  of  Ruffin,  C.  J., 
who  dissented  upon  the  point  as  to  the  necessity  of  immediate  entry. 
See  also  Breese  v.  S.,  12  O.  St.  146. 

8  Nicholls  V.  S.,  68  Wis.  416.  32  X.  W.  543. 

9  Allen  i;.  S.,  40  Ala.  334.  See  also  Reg.  v.  Hancock,  C  C.  R.,  6  Reptr 
351. 


216  CRIMINAL  LAW.  [Sects.  260,  2G1. 

being  so  apprised,  merely  lies  in  wait  for  the  purpose  of  de- 
tecting the  perpetrators,  this  is  no  consent,  and  they  will  be 
guilty  of  the  offence.^ 

§  260.  Dwelling-House. —  The  breaking  must  be  of  some 
part  of  that  actual  enclosure  which  constitutes  the  dwelling- 
house.  The  mere  passage  across  that  imaginary  line  with 
which  the  law  surrounds  every  man's  realty,  and  which  con- 
stitutes a  sufficient  breaking  upon  which  to  found  the  action 
of  trespass  quare  clausum  /regit,  is  not  sufficient.  But  where 
part  of  a  structure  is  occupied  as  a  dwelling,  it  is  burglary  to 
break  into  another  part  within  the  same  walls  and  under  the 
same  roof,  as,  for  instance,  a  lower  floor  occupied  by  the  same 
person  as  a  shop,  though  there  is  no  internal  connection  be- 
tween the  two  parts.2 

§  261.  Breaking  within  the  House. —  The  breaking  of  the 
outer  enclosure  is  not  essential,  if,  after  the  entry  through  this, 
the  house  or  some  parts  of  it  be  broken.  Thus,  the  forcing  of 
tlie  fastened  outer  shutters  of  a  window  would  be  a  breaking; 
if  these  happened  to  be  open,  then  the  forcing  of  the  window 
would  be  a  breaking;  and  if  both  were  open,  and  an  entry 
be  effected  through  them,  then  a  breaking  open  of  an  inner 
door,  a  part  of  the  house,  would  constitute  the  offence  ;  ^  though 
not  the  breaking  open  a  chest,  cupboard,  clothes-press,  or 
other  movable,  not  part  of  the  house.*  So  if  one  guest  at  an 
inn  break  and  enter  the  room  of  another  guest,  it  is  burglary  ;^ 
and  so  if  done  by  a  third  person,  and  this  whether  the  occu- 
pant is  a  permanent  dweller  at  the  hotel  or  a  transient.^  It 
was  formerly  doubted  whether  an  inn-keeper  would  be  guilty 

1  Rex  V.  Bigley,  1  C.  &  D.  ([rish)  C.  C.  202;  Thompson  v.  S.,  18  Tnd. 
386.  Compare  also  Alexandei-  v.  S  ,  12  Tex.  540,  with  Reg.  r.  Hancock, 
a7ite.     See  ante,  §§  21,  22. 

2  P.  V.  G.iffin,  77  Mich.  585,  43  X.  W.  1061;  Ilahn  v.  P.,  60  Neb. 
487,  83  N.  W.  674;  Quinn  v.  P.,  71  N.  Y.  561,  M.  922.     See  p^st,  §  264. 

3  S.  V.  Scripture,  42  N.  H.  485;  S.  v.  AVilson,  Coxe  (N.  J.),  439; 
Rolland  v.  C,  85  Pa.  66. 

4  Ibid. 

6  S.  V.  Clark,  42  Yt.  029. 

6  Holland  v.  S.  (Tex.),  74  S.  W.  703;  S.  v.  Burton,  27  Wash.  528,  67  P. 
1097. 


Sects.  262,  263.]  BURGLARY.  247 

of  burglary  by  breaking  and  entering  the  room  of  his  guest, 
the  doubt  resting  upon  the  question  whether  the  room  was 
the  guest's  for  the  time  being.^  Under  statutes  making  a 
special  or  constructive  ownership  sufficient,  the  doubt  can 
hardly  exist.^ 

§  262.  Breaking  out.  —  It  was  early  enacted,^  to  solve  the 
doubts  which  had  theretofore  prevailed,  that  the  entry  by  day 
01"  by  night  into  a  dwelling-house  without  breaking,  with  in- 
tent to  commit  a  felony,  and  the  breaking  out  of  the  house, 
should  constitute  the  crime  of  burglary.  And  such,  we  be- 
lieve, is  the  law  in  England  to  the  present  day.^  The  indict- 
ment should  charge  the  breaking  out ;  and  if  so  charged,  it 
seems  that  in  this  country  the  prisoner  may  be  convicted, 
where  the  statute  of  Anne  has  been  adopted  as  part  of  the 
common  law,  or  has  been  substantially  followed  by  the  statute 
of  the  State,^  but  not  otherwise.^  No  case  has  been  found  of 
a  conviction  under  such  an  indictment ;  and  it  is  at  least 
doubtful  if  it  would  now  anywhere  be  held,  unless  under  the' 
clearest  evidence  that  the  statute  of  Anne  is  obligatory,  that 
a  breaking  out  to  escape  is  a  sufficient  breaking  to  constitute 
burglaryJ 

§  263.  Entry.  —  In  order  to  constitute  an  entry,  it  is  not 
necessary  that  the  whole  person  should  be  within  the  house. 
Thrusting  in  the  hand  or  a  stick,  for  the  purpose  of  getting 
possession  of  goods  within,  through  an  aperture  broken  for 
the  purpose,  is  an  entry. ^  But  the  mere  passage  of  the  instru- 
ment through  in  breaking,  as  an  auger  by  which  the  break  is 
effected,  or  a  bar  by  which  the  window  is  to  be  pried  open, 

1  2  Bish.  New  Cr.  Law,  §  106.  Compare  S.  v.  Moore,  12  N.  H.  42,  M. 
918. 

2  Post,  §  265. 

8  12  Anne,  c.  1,  §  7. 

*  Steph.  Dig.  Cr.  Law,  art.  319 ;  Rex  v.  McKearuey,  Jebb  C.  C.  99, 
2  Lead.  Cr.  Cas.  62  and  note. 

5  S.  V.  McPherson,  70  N.  C.  239. 

6  White  V.  S.,  51  Ga.  285. 

•  Holland  v.  C,  85  Pa.  66. 

8  Rex  V.  Bailey,  R.  &  R.  341;  S.  v.  Boysen,  80  Wash.  338,  70  P. 
740. 


248  CRIMINAL  LAW.  [Sect.  264. 

has  been  held  not  to  be  an  entry ;  ^  yet  where  the  auger  also 
effects  the  entry,  as  where  one  bores  through  the  floor  of  a 
corn-crib  and  the  corn  runs  down  through  the  hole,  that  is  a 
sufficient  entry.'-^  And  the  thrusting  of  the  hand  underneath 
the  window,  to  lift  it,  so  that  the  lingers  extend  to  the  inside 
of  the  window,  has  been  held  to  be  a  sufficient  entry .^  So  the 
sending  in  of  a  boy  after  breaking,  the  boy  being  an  innocent 
agent,  to  bring  out  the  goods,  is  an  entry  by  the  burglar,  who 
all  the  while  remains  outside.*  The  cases,  in  other  words, 
seem  to  establish  this  distinction  ;  where  the  implement  held 
in  the  hands  passes  within  tlie  enclosure  for  the  purpose  of 
breaking  only,  there  is  no  entry;  but  if  the  breaking  is  done 
by  the  hand  and  that  passes  within  the  enclosure,  even  though 
only  as  a  part  of  the  act  of  breaking,  or  if  the  implement 
passes  in  for  the  purpose  of  committing  the  intended  felony, 
there  is  an  entry .'^  And,  upon  principle,  there  seems  to  be  no 
doubt  that  one  who  shoots  a  ball  or  thrusts  a  sword  through  a 
window  with  intent  to  kill,  though  he  fail  of  his  purpose  to 
kill,  is  nevertheless  guilty  of  breaking  and  entering.^  Simi- 
larly, it  is  of  course  immaterial  that  the  defendant  found 
nothing  to  steal,  or  was  frightened  away  before  he  in  fact 
committed  the  intended  substantive  crime." 

§  264.  Dwelling-house.  Occupancy.  —  As  in  arson,  the  dwell- 
ing-house comprehends  all  the  buildings  within  the  same  curti- 
lage or  common  fence,  and  used  by  the  owner  as  part  and 
parcel  thereof,  though  not  contiguous ;  ^  as,  for  instance,  a 

1  4  Bl.  Com.  227;  Rex  v.  Hughes,  1  Leach  Cr.  L.  (4th  ed.)  406;  Rex 
V.  Rust,  1  Moo.  C.  C.  183. 

2  AValker  v.  S.,  63  Ala.  49;  S.  v.  Crawford,  8  X.  D.  .539,  80  X.  W. 
193,  M.  916. 

3  Rex  V.  Davis,  R.  &  R.  C.  C.  499,  M.  914;  Franco  v.  S.,  42  Tex.  276; 
Nash  V.  S.,  20  Tex.  App.  384. 

4  1  Hale  P.  C.  555. 

^  See  in  addition  to  the  cases  cited  above  Reg.  r.  O'Brien,  4  Cox  C.  C. 
400,  M.  915;  compare  S.  v.  McCall,  4  Ala.  643. 

«  Ante,  §§  183,  184a. 

'  Ragland  o.  S.,  71  Ark.  65,  70  S.  W.  1039 ;  Lanier  v.  S.,  76  Ga.  301 ; 
S.  V.  McDaniel,  60  N.  C.  245;  S.  r.  Beal,  37  O.  St.  108. 

*  Ante,  §  251. 


Sect.  264.]  BURGLARY.  249 

smokehouse,  the  front  part  and  doors  of  which  were  in  the 
yard  of  the  dwelling-house,  though  the  rear,  into  which  the 
break  and  entry  were  made,  was  not.^  And  it  has  been  lield  in 
this  country  that  it  is  sufficient  if  the  building  entered  be  sit- 
uated in  proximity  to  the  dwelling  and  in  fact  used  in  connec- 
tion therewith  for  domestic  purposes.^  It  must  be  a  place  of 
actual  residence  or  habitation,  though  it  is  not  essential  that 
any  one  should  be  within  at  the  very  time  of  the  offence.  If 
the  occupants  are  away  temporarily,  but  with  the  design  of 
returning,  and  it  is  the  house  where  they  may  be  said  to  live, 
—  their  actual  residence,  —  this  constitutes  it  their  dwelling- 
house.^  But  if  the  occupation  is  otlierwise  tlian  as  a  place  of 
residence,  as  for  storage,  or  even  casually  for  lodgings,  or  if 
persons  not  of  the  family  nor  in  the  general  service  of  the 
owner  sleep,  but  do  not  otherwise  live  there,  and  for  the  pur- 
pose of  protection  only,  it  is  not  a  dwelling-house  in  the  sense 
of  the  law.  Nor  is  a  temporary  booth  or  tent  erected  at  a 
fair  or  market  such  a  dwelling-house.*  If,  however,  the  house 
be  habitually  occupied  in  part  as  a  storehouse  and  in  part  as 
the  lodging  place  of  the  servants  and  clerks  of  the  owner,  it  is 
his  dwelling-house.^  And  if  it  be  habitually  slept  in  by  one  of 
the  family,  or  one  in  the  service  of  the  owner,  even  if  slept  in 
for  the  purpose  of  protection,  it  has  been  held  to  be  a  dwelliug- 
house  within  the  sense  of  the  law ;  ^  and  by  the  same  court, 
that  if  the  person  so  sleeping  in  the  store  for  its  protection  be 
not  a  member  of  the  family,  or  in  the  service  of  the  same,  he 
is  but  a  watchman,  and  the  store  cannot  be  said  to  be  the 
dwelling-house  of  the  owner." 

1  Fisher  v.  S.,43  Ala.  17;  P.  v.  Griffith,  133  Mich.  607,  0-5  N.  W.  719. 

2  S.  V.  Bugg,  66  Kan.  668, 72  P.  236  ;  contra :  Rex  v.  Garland,  1  Leach 
(4th  ed.),  144,  M.  920. 

3  S.  V.  Weber,  156  Mo.  257,  56  S.  W.  893;  Alvia  v.  S.,  42  Tex.  Cr.  R. 
424,  60  S.  W.  551. 

*  S.  V.  Jenkins,  5  Jones  (X.  C.),430;  C.  v.  Brown,  3  Rawle  (Pa.),  207; 
Armour  v.  S.,  3  Humph.  (Tenn.)  379  ;  3  Greenl.  Ev.,  §§  79,  SO. 

^  Ex  parte  Vincent,  26  Ala.  145. 

6  S.  V.  Outlaw,  72  X.  C.  598;  S.  v.  Williams,  90  X.  C.  724. 

T  S.  1-.  Potts,  75  X.  C.  129  ;  so  Rex  v.  Harris,  2  Leach  (4th  ed.),  701, 
M.  921. 


250  CRIMINAL  LAW.  [Sects.  265,  266. 

§265.  Dwelling-house.  Ownership. — There  may  be  many 
dweiling-houses  under  the  same  roof  ;  as  where  separate  apart- 
ments are  rented  to  divers  occupants,  who  have  exchisive 
control  of  their  several  apartments.^  If,  however,  the  general 
owner  also  occupies,  by  himself  or  his  servant,  the  buildhig  in 
part,  exercising  a  supervision  over  it,  and  letting  it  to  lodgers 
or  to  guests,  the  house  must  be  treated  as  his,  unless,  as  in 
some  States  is  the  case,  a  special  or  constructive  ownership  is 
made  by  statute  sufficient  evidence  of  ownership.^  But  this 
is  rather  a  question  of  procedure,  not  pertaining  to  the  defini- 
tion of  the  crime.^ 

A  church  being,  as  Coke  says,  the  mansion-house  of  the 
Almighty,  is  by  the  common  law  a  dwelling-liouse,  within 
the  meaning  of  the  definition  of  burglary.*  So  also,  under  the 
old  law,  was  a  walled  town.^ 

§  266.  Time,  —  The  time  of  both  breaking  and  entering  must 
be  in  the  night,  and  this,  at  common  law,  was  usually  held  to 
be  the  period  during  which  the  face  of  a  person  cannot  be  dis- 
cerned by  the  light  of  the  sun ;  though  some  authorities  fixed 
the  limits  more  exactly  as  the  period  between  sunset  and  sun- 
rise.^ Now,  by  statute,^  in  Enghmd,  night  begins  at  nine  and 
ends  at  six.  In  Massachusetts,  the  meaning  of  "  night-time" 
in  criminal  prosecutions  is  defined  to  be  from  one  hour  after 
sunset  to  one  hour  before  sunrise  ;  ^  and  doubtless  other  States 
have  fixed  the  limit  by  statute.  It  may  happen  that  the  acts 
culminating  in  the  commission  of  the  intended  felony  extend 
through  several  days  and  nights,  as  where  one  is  engaged  day 
and  night  in  working  his  way  through  a  substantial  partition 
wall.  If  the  actual  perforation  be  made  during  one  night,  and 
the  entry  on  the  same  or  a  subsequent  night,  the  offence  is 

1  Mason  y.  P.,20  N.  Y.  200. 

2  3  GreenL  Ev.,  §§  57,  81 ;  S.  v.  Outlaw,  ante. 
8  See  also  Arson,  ante,  §  2.53. 

*  3d  Inst.  64;  Reg.  v.  Baker,  3  Cox  C.  C.  .581. 

6  4  Bl.  Com.  224. 

«  1  Hawk.  P.O.  (8th  ed.)  130,  §2;  8.  v.  Bancroft,  10  N.  H.  105. 

7  7  Wm.  TV,  &  1  Vict.  c.  86,  §  4. 

8  C.  V.  Williams,  2  Cush.  (Mass.)  582. 


Sects.  267,  268.]  BURGLAKY.  251 

complete,  both  being  in  pursuance  of  the  same  design.^     In 
some  States,  by  statute,the  question  of  time  becomes  immateriah 

§  267.  Intent.  —  As  the  breaking  and  entry  must  be  with 
intent  to  commit  a  felony,  tbe  intent  to  commit  a  misdemeanor 
only  would  not  be  sufficient  to  constitute  tlie  crime.  Thus,  a 
breaking  and  entry  with  intent  to  commit  adultery  would  or 
would  not  constitute  the  offence,  according  as  adultery  might 
be  a  felony,  misdemeanor,  or,  as  in  some  States  it  is,  no  crime 
at  all ;  ^  and  if  the  intent  be  to  cut  off  the  owner's  ears,  this  is 
not  a  burglary,  since  the  cutting  off  an  ear  does  not  amount  to 
felony,  —  mayhem,  —  at  common  law.^  So  if  the  person  who 
breaks  is  so  intoxicated  as  to  be  incapable  of  entertaining  any 
intent.^ 

§268.  Statutory  Breakings. — The  crime  of  burglary  has 
been  much  extended  by  statute.  Thus  breaking  and  entering 
in  the  day-time  has  been  made  criminal ;  and  so  has  larceny 
from  a  dwelling-house,  though  there  has  been  no  breaking. 
Other  buildings  have  been  given  protection,  and  in  most  ju- 
risdictions it  is  made  a  crime  to  break  and  enter  any  building 
for  the  purpose  of  committing  felony  therein.^  An  unfinished 
building,  which  is,  however,  used  for  storing  tools,  is  a  build- 
ino-  within  such  a  statute,^  and  it  is  a  sufficient  breaking  to 
cut  through  canvas  screens  placed  in  the  windows.'  But  a 
tomb  is  not  a  building  within  the  meaning  of  such  a  statute.^ 
A  building  may  be  within  the  statutory  definition,  though  of 
a  sort  unknown  when  the  statute  was  passed.  Thus  a  rail- 
road station  is  a  warehouse,  within  the  meaning  of  a  statute 
passed  before  the  time  of  railroads.^ 

1  Rex  V.  Smith,  R.  &  R.  417 ;  C.  v.  Glover,  111  Mass.  395. 

2  S.  V.  Cooper,  16  Vt.  551. 

8  C.  V.  Newell,  7  Mass.  245,  C.  482. 

4  S.  V.  Bell,  29  la.  316. 

5  Compare  P.  v.  Richards,  108  N.  Y.  137,  15  N.  E.  371,  C.  474. 

6  Clark  V.  S.,  69  Wis.  203,  33  N.  W.  436. 

T  Grimes  v.  S.,  77  Ga.  762;  compare  S.  v.  Petit,  32  Wash.  129,  72  P. 
1021. 

8  P.  V.  Richards,  ante. 

9  S.  V.  Bishop,  51  Vt.  287. 


252  CRIMINAL  LAW.  [Sect.  269. 


CHAPTER   YIII. 

OFFENCES    AGAINST   PROPERTY. 


§  270.    Larceny. 
298.    Embezzlement. 
305.   False  Pretences. 
318.   Cheatina:. 


§  321.  Malicious  Mischief. 

324.  Receiving  Stolen  Goods. 

329.  Forgery. 

336.  Couuterfeitins. 


§  269.  The  common  law,  as  has  been  seen,^  did  not  regard 
every  interference  with  the  property  of  another  as  criminal. 
In  business  transactions  each  person  was  left  to  protect  him- 
self. It  was,  to  be  sure,  a  crime  to  cheat  by  the  use  of  false 
tokens,  such  as  would  deceive  the  most  careful ;  but  ordinary 
cheating  by  lies  was  not  criminal.  The  only  crime  against 
property  of  any  importance  was  larceny  ;  and  this  concerned 
not  the  title,  but  the  possession,  of  personal  property. 

In  the  progress  of  society  and  trade  other  similar  offences 
became  of  public  concern ;  and  statutes  were  accordingly 
passed  extending  the  crime  of  larceny  in  all  directions. 

Thus  it  was  made  criminal  to  obtain  the  titlii  of  property 
by  false  pretences ;  or  to  embezzle  property  already  in  the 
offender's  possession.  Malicious  injury  to  property,  without 
disturbing  the  possession,  was  made  punishable  ;  and,  finally, 
certain  injuries  to  real  property  were  punished  as  similar 
injuries  to  personal  property  had  been.  Further,  protection 
was  afforded  by  punishing  one  who  received  stolen  goods 
knowingly. 

Besides  larceny,  there  was  an  important  common  law  crime 
which  affected  property.  This  was  forgery,  which,  together 
with  its  special  form  of  counterfeiting,  was  a  common  and 
important  crime  in  the  Middle  Ages. 

1  Ante,  §  17. 


Sects.  270,  271.]  LARCENY.  2oi 


LARCENY. 

§  270.  Larceny  is  comiuQiily  defined  to^j3e__^tlie___fejbn^^ 
takin^?  and__carrniig  away  of  Jthejjersonal^^o;ood§_o:[_ji^^ 
Notwiths'tamSmgThelrequ^  of  the  offence,  neither  law 
writers  nor  judges  are  entirely  agreed  on  its  exact  definition, 
and,  as  in  case  of  "  assault,"  it  is  still  a  matter  of  debate.^ 
It  seems  to  be  agreed,  however,  that  the  definition  given  above 
is  accurate,  so  far  as  it  goes. 

Formerly,  larceny  was  either  petit,  that  is,  larceny  of  prop- 
erty the  value  of  which  did  not  exceed  the  sum  of  twelve  pence; 
or  grand,  that  is,  larceny  of  property  the  value  of  which 
exceeded  that  sum ;  a  distinction  which  was  of  consequence 
only  as  determining  the  degree  of  punishment,  grand  larceny 
being  punishable  with  death,  while  petit  larceny  was  only 
punishable  by  fine  and  imprisonment.  Now,  however,  as  no 
larceny  is  punishable  with  death,  tlie  distinction  is  practically 
done  away  with.  Still,  the  value  of  the  property  at  the  present 
day  determines,  to  some  extent,  the  degree  of  punishment  to 
be  inflicted  for  the  commission  of  the  offence,  and  also  the 
jurisdiction  of  the  tribunal  which  is  to  take  cognizance,  and 
hence  continues  to  be  a  matter  material  to  be  stated  in  the 
indictment. 

Larceny  is  also  simple,  or  plain  theft,  without  any  circum- 
stances of  aggravation ;  or  compound,  usually  termed  aggra- 
vated larceny,  or  larceny  accompanied  by  circumstances  which 
tend  to  increase  the  heinousness  of  the  offence,  as  larceny 
from  the  person  or  larceny  from  the  house,  taking  property 
from  under  the  protection  of  the  person  or  house  being  justly 
considered  as  indicating  a  greater  degree  of  depravity  in  the 
thief  than  the  taking  of  the  same  articles  when  not  under 
such  protection. 

§  271.    Personal  Goods Such  property  only  is  the  subject 

of  larceny  at  common  law  as  is  properly  described  as  "  goods 
and  chattels."  As  soon  as  property  is  reduced  into  the  form 
of  a  chattel,  and  so  long  as  it  retains  that  form,  it  may  be 

1  4  Bl.  Com.  229. 

2  2  Bish.  Xew  Cr.  Law,  §  758,  and  note. 


254  CRIMINAL  LAW.  [Sect.  271. 

stolen.  Thus  the  milking  a  cow  and  the  plucking  of  wool 
from  a  sheep  are  larcenies  of  the  milk  and  wool.^  So  turpen- 
tine which  has  been  collected  from  a  tree,^  illuminating  gas 
drawn  from  a  pipe  through  which  it  is  transmitted,^  or  water 
in  the  same  condition,'*  ice  collected  in  an  ice-house,^  a  key  in 
the  lock  of  a  door,*^  a  coffin,"  and  the  grave-clothes  in  which 
a  person  is  buried,^  are  all  subjects  of  larceny ;  but  not  a  dead 
body,^  for  it  is  not  property.  The  dead  body  of  a  domestic 
animal  may,  however,  be  stolen.^''  In  short,  all  goods  and 
chattels  reduced  to  possession  and  not  abandoned,  —  such  as 
can  be  said  to  be  the  present  property  of  some  owner  at  the 
time  of  the  taking, —  may  be  subject  matters  of  larceny. 
There  can  be  no  larceny  of  abandoned  property. ^^  Property  is 
abandoned,  however,  only  if  there  is  an  intent  so  to  do  on  the 
part  of  the  owner.  ^^  A  mere  determination  that  no  use  shall 
be  made  of  the  property  is  not  an  abandonment  of  it.^^  And 
the  mere  fact  that  property  has  been  left  untouched  by  the 
owner  for  many  years  does  not,  in  itself,  constitute  an  aban- 
donment thereof.^^ 

Upon  the  ground  of  non-reduction  to  possession,  sea-weed 
found  floating  on  the  shore  between  high  and  low  water  mark 

1  Rex  V.  Pitman,  2  C.  &  P.  423. 

2  S.  V.  Moore,  11  Ired.  (N.  C.)  70. 

3  Reg  I'.  White,  6  Cox  C.  C.  213;  C.  v.  Shaw,  4  All.  (Mass.)  308; 
S.  V.  Wellman,  34  Minn.  221,  25  N.  W.  395;  Hutchison  v.  C,  82  Pa. 
472. 

"  Ferens  v.  O'Brien,  11  Q.  B.  D.  21,  C.  238. 

5  Ward  V.  P.,  3  Hill  (N".  Y.),  395. 

6  Hoskins  v.  Tarrence,  5  Blackf.  (Ind.)  417,  C.  240,  K.  239,  M.  642. 
T  S.  V.  Doepke,  68  Mo.  208. 

8  Hayne's  Case,  12  Coke  113,  M.  662;  Wouson  v.  Sayward,  13  Pick. 
(Mass.)  402. 

9  2  East  P.  C.  652. 

10  Reg.  V.  Edwards,  13  Cox  C.  C.  384,  C.  239,  K.  247,  M.  652. 

11  Ibid.;  McGoon  v.  Aukey,  11  111.  558;  U.  S.  v.  Smiley,  6  Sawy.  640, 
Fed.  Cas.  No.  16,317. 

12  Hayne's  Case,  ante;  P.  v.  Campbell,  Add.  (Pa.)  232,  M.  G85. 

13  Reg.  V.  Edwards,  anie. 

"  Livermore  r.  White,  74  Me.  452  (forty-three  years)  ;  Sikes  v.  S.  (Tex.), 
28  S.  AV.  688  (nine  years). 


Sect.  272.]  LARCENY.  255 

cannot  be  claimed  as  belonging  to  the  owner  of  the  fee 
between  high  and  low  water  mark,  and  it  is  no  larceny  to 
take  it.^ 

§  272.  Instruments  in  Writing.  —  When  a  paper  contains 
writing  which  is  of  itself  valuable,  as,  for  instance,  a  promis- 
sory note,  bond,  mortgage,  policy  of  insurance,  or  other  chose 
in  action  or  muniment  of  title,  the  character  of  chattel  which 
the  paper  formerly  had  is  merged  in  its  far  more  important 
character  of  written  obligation,  and  it  is  held  to  be  no  longer 
a  chattel.  Written  obligations  are  therefore  not  subjects  of 
larceny  at  the  common  law.^ 

A  written  instrument  which  does  not  contain  an  operative 
obligation  still  remains  mere  written  paper,  and  is  therefore  a 
chattel  and  the  subject  of  larceny .^  Such  is  a  written  obliga- 
tion which  has  been  performed,  like  a  cancelled  check,*  or  a 
deed  not  yet  delivered.^  But  a  written  contract,  although  not 
stamped  as  required  by  statute,  is  not  larcenable.^ 

In  the  absence  of  statutes,  the  courts  of  this  country  have 
been  inclined  to  follow  the  common  law.  But  statutes  here, 
as  also  indeed  in  England,  have  generally  interposed,  and 
made  not  only  goods  and  chattels,  as  by  the  common  law,  but 
also  choses  in  action  and  muniments  of  title,  whether  they 
savored  of  realty  or  not,  and  in  fact  almost  everything  wliich 
constitutes  personalty  in  contradistinction  to  the  realty,  sub- 
ject matters  of  larceny.^     Indeed,  in  many  if  not  most  of  the 

1  Reg.  V.  Clinton,  Ir.  Rep.  4  C.  L.  6.  See  also  C.  v.  Sampson,  97 
Mass.  407. 

2  Calye's  Case,  8  Co.  33  a  ;  Reg.  v.  Powell,  5  Cox  C.  C.  396,  C.  244; 
Reg.  i:  Green,  6  Cox  C.  C.  296;  Payne  v.  P.,  6  Johns.  (N.  Y.)  103;  S. 
V.  Wilson,  3  Brev.  (S.  C.)  196 ;  U.  S.  v.  Davis,  5  Mason  (C.  Ct.),  356, 
Fed.  Cas.  Xo.  14,930. 

3  Rex  V.  Walker,  1  Moo.  C.  C.  155,  C.  246;  Reg.  v.  Perry,  1  C.  &  K. 
725,  K.  245. 

4  Reg.  V.  Watts,  4  Cox  C.  C.  336. 

s  P.  V.  Stevens,  38  Hun  (N.  Y.),  62. 

6  Reg.  r.  Watts,  6  Cox  C.  C.  304,  M.  647. 

T  S.  V.  Stewart,  I  Marv.  (Del.)  542,  41  Atl.  188  (trading  order)  ;  C.  r. 
Lawless,  103  Mass.  425  (certificate  of  discharge)  ;  S.  v.  Scanlan,  89  Minn. 
244,  94  N.  W.  686  (voucher) ;  S.  v.  Morgan,  109  Teun.  157,  69  S.  W. 


256  CRIMINAL  LAW.  [Sects.  273,  274. 

States  the  felonious  taking  of  parts  of  the  realty  may  be  in- 
dicted as  larceny. 

The  fact  that  the  property  is  illegally  held  or  can  be  used 
only  illegally  does  not  make  it  any  the  less  a  subject  of 
larceny.! 

§273.  No  Larceny  of  Real  Estate.  —  At  common  law  there 
could  be  no  larceny  of  the  realty,  or  any  pai't  of  it  not  de- 
tached. Only  chattels  could  be  the  subject  of  larceny,  and 
these,  with  few  limitations,  might  be.  Deeds  of  real  estate 
were  regarded  as  so  "  savoring  of  the  realty  "  as  not  to  be 
subjects  of  larceny.^ 

Manure  was  not  larcenable  if  spread  on  the  earth  as  ferti- 
lizer; if  not  thus  incorporated  with  the  realty  it  could  be 
stolen.^ 

§  274.  Wild  Animals,  in  a  state  of  nature,  are  not  subjects 
of  larceny ;  but  when  such  of  them  as  are  fit  for  food,  or  for 
producing  property,  have  been  reclaimed,  or  brought  into 
control  and  custody,  so  that  they  can  fairly  be  said  to  be  in 
possession,  they  then  become  property,  and  may  be  stolen. 
Bees,*  pea-fowl,^  doves,^  oysters,"  when  reduced  to  possession, 
belong  to  this  category.  And  so,  doubtless,  would  fish  be,  if 
caught  and  kept  in  an  artificial  pond,^  as  they  certainly  are  if 
captured  for  food  or  for  oil.^  But  they  must  be  actually  re- 
duced to  possession.  If  they  are  only  partially  enclosed  so 
that  they  can  still  escape,  even  though  escape  is  unlikely,  they 

970  (county  warrant);  Jolly  v.  U.  S.,  170  U.  S.  402,  18  S.  C.  R.  624 
(postage  stamps)  ;  Bishop  Stat.  Crim.,  4tli  ed.,  §§  325,  and  following. 

1  A7ite,^25. 

2  1  Hawk.  P.  C.  142;  Rex  v.  Wody,  Y.  B.  10  Ed.  IV,  14  pi.  9,  10; 
Rex  V.  Westbeer,  1  Leach  C.  C.  (3d  ed.)  14,  C.  242,  JM.  640. 

3  Carver  v.  Pierce,  Style  66,  K.  23S,  M.  630.  See  Ball  v.  AVhite,  39 
O.   St.  650. 

4  S.  V.  Murphy,  8  Blackf.  (lud.)  498. 

5  Anon.,  Y.  B.  19  11.  VIII,  2,  pi.  11,  K.  250;  C.  r.  Beaman,  8  Gray 
(Mass.),  497. 

6  Rex  V.  Brooks,  4  C.  &  P.  131 ;  C.  v.  Chace,  9  Pick.  (Mass.)  15. 
'  S.  V.  Taylor,  3  Dutch.  (N.  J.)  117. 

8  Rex  V.  Hundson,  2  East  P.  C.  611. 

e  Taber  v.  Jenny,  1  Sprague  (C.  Ct.),  315,  Fed.  Gas.  No.  13,720. 


Sect.  275.]  LARCENY.  2o  / 

are  not  subjects  of  larceny .^  So  if  wild  animals  fit  for  food 
are  shot,  and  thus  reduced  to  possession,  they  become  subjects 
of  larceny; 2  but  chasing,  without  capture,  gives  no  right  of 
property.^  And  where  young  partridges  are  reared  from  eggs 
under  a  hen,  they  are  suljjects  of  larceny  so  long  as  they  con- 
tinue reclaimed.* 

But  dogs,  cats,  foxes,  bears,  and  the  like,  ferce  naturce,  were 
not  by  the  common  law,  and  are  not  in  this  country,  subjects 
of  larceny,  unless  by  some  statute  they  are  made  so,^  or  unless 
by  the  bestowal  of  care,  labor,  and  expense  upon  them,  or 
some  part  of  them,  they  have  by  that  treatment  acquired  value 
as  property,  as  by  being  stuffed  or  skinned.^  And  it  has  been 
generally  held  that,  though  they  may  by  statute  become  prop- 
erty and  subjects  of  a  civil  action,  and  liable  to  taxation,  they 
are  not  subjects  of  larceny.'  Otherwise  in  New  York,^  where 
it  is  held  that,  under  a  statute  punishing  the  stealing  of  the 
"  personal  property "  of  another,  the  larceny  of  a  dog  is 
punishable. 

§  275.  Conversion  into  Chattels  by  Severance  from  Realty  or 
by  Killing.  —  If  portions  of  the  realty  become  detached,  not 
by  natural  causes,  as  blinds  from  a  house,^  or  a  nugget  of  gold 

1  Young  V.  Hitchins,  6  Q.  B.  606 ;  Sellers  i'.  Sollers.  77  Md.  148,  26 
Atl.  188.     Compare  S.  v.  Shaw,  67  O.  St.  157,  6.5  N.  E.  875. 

2  Reg.  r.  Townley,  12  Cox.  C.  C  59. 

3  Buster  v.  Newkirk,  20  Johns.  (N.  Y.)  75. 

4  Reg.  V.  Shickle,  L.  R.  1  C.  C.  158,  C.  251,  K.  251. 

5  2  Bl.  Com.  193;  Rex  v.  Searing,  R.  &  R.  350,  C.  248,  K.  214,  M. 
639  ;  Ward  v.  S.,  48  Ala.  161 ;  Norton  v.  Ladd,  5  X.  H.  203. 

6  Reg.  V.  Cheafor,  c  Cox  C.  C.  367 ;  Reg.  v.  Gallears,  1  Den.  C.  C. 
501 ;  S.  V.  House,  65  N.  C.  315. 

■^  Norton  v.  Ladd,  ante ;  Warren  v.  S.,  1  Greene  (la.),  106 ;  S.  v.  Holder, 
81  N.  C.  527;  S.  v.  Lymus,  26  O.  St.  400. 

«  P.  V.  Maloney,  1  Parker  C.  C.  503;  P.  v.  Campbell,  4  Parker  C.  C. 
380:  Mulialy  v.  P.,  86  N.Y.  365,  C.  248;  accord,  Hamby  r.  Sampson, 
105  la.  112,  74  X.  W.  918;  Rockwell  v.  Judge,  133  Mich.  11,  91  N.  W. 
378 ;  S.  V.  Langford,  55  S.  C.  322,  33  S.  E.  370 ;  S  v.  Brown,  9  Baxt. 
(Tenn.)  53;  Hurley  v.  S.,  30  Tex.  App.  333,  17  S.  W.  455.  See  also 
Haywood  i-.  S.,  41  Ark.  479,  M.  644;  S.  v.  Butler,  2  Penne.  (Del.)  127, 
43  Atl.  480. 

9  Reg.  V.  Wortley,  1  Den.  C.  C.  162. 

17 


258  CRIMINAL  LAW.  [Sect.  275. 

from  the  vein,^  they  may  become  the  subject  of  larceny,  unless 
the  detachment  or  severance  be  part  and  parcel  of  the  act  of 
taking,^  in  which  case  the  taking  is  but  a  trespass,  —  "  a  sub- 
tlety in  the  legal  notions  of  our  ancestors."  ^ 

It  was  formerly  held  that  a  day  must  elapse  between  the 
severance  and  the  taking  in  order  to  constitute  larceny  ;  but 
it  is  now  more  reasonably  laid  down  that  the  lapse  of  time  be- 
tween the  act  of  severance  and  the  act  of  taking  need  be  only 
so  long  as  is  necessary  to  make  the  two  acts  appreciably  dis- 
tinct, and  the  latter  successive  to  the  former.^ 

A  difficult  question,  however,  remains ;  namely,  wiiat  is 
necessary  in  order  to  make  the  acts  of  severance  and  taking 
distinct.  The  mere  fact  that  there  are  physically  two  acts  is 
not  enough.  There  must  be  something  which  will  give  an  in- 
tervening possession  to  the  owner  of  the  soil ;  otherwise,  there 
is  no  taking  out  of  the  owner's  possession,  for  he  has  had  no 
possession  of  the  chattel  as  an  article  of  personal  property  prior 
to  its  severance  from  the  realty.  If  the  owner,  or  a  servant 
for  him,  takes  possession  of  the  goods  after  severance,  any 
subsequent  taking  is  no  doubt  larceny.  If  there  is  mere  lapse 
of  time,  it  must,  in  order  to  justify  conviction,  be  long  enough 
for  the  jury  to  find  that  possession  has  vested  in  the  owner. 
No  doubt,  such  lapse  of  time  as  would  indicate  an  abandonment 
by  the  wrong  doer  of  his  intention  to  take  the  chattels  would 
be  enough  ;  and  if  the  chattels  were  so  left  on  the  owner's  land 
that\he  wrong  doer  lost  the  power  of  control  of  them,  the  pos- 
session would  rest  in  the  owner,  and  a  subsequent  takiug 
would  be  larceny.  But  where  the  possession  of  the  wrong  doer 
is  continuous  from  the  time  of  severance  to  the  time  of  taking 
there  is  no  larceny.^ 

1  S.  V.  Berryman,  8  Nev.  262,  1  Green's  Cr.  Law  Rep.  335,  and  note ; 
S.  V.  Burt,  64  N.  C.  619. 

2  Reg.  V.  Townley,  L.  R.  1  C.  C.  315,  12  Cox  C.  C.  59,  C.  256,  K.  255, 
M.  654 ;  S.  v.  Hall,  5  Harr.  (DeL)  492. 

8  4  Bl.  Cora.  232.     See  P.  v.  Williams,  35  Cal.  671,  C.  253. 

*  P.  V.  Williams,  ante/  S.  v.  Berryman,  a7ite ;  S.  v.  King,  98  N.  C.  648, 
4  S.  E.  44;  Jackson  v.  S.,  11  O.  St.  104  ;  Bell  v.  S.,  4  Baxt.  (Teini  )  426. 

5  Reg.  V.  Foley,  26  L.  R.  (Ir.)  209,  17  Cox  C.  C  142,  K.  241.  See 
especially  the  dissenting  opinion  of  Palles,  C.  B. 


Sects.  276,  277.]  LARCENY.  259 

This  distinction  has  not,  however,  always  been  kept  in  mind 
by  the  courts ;  and  the  rule  has  sometimes  been  laid  down  as 
if  it  were  a  question  of  simply  the  physical  acts.^ 

The  same  principles  apply  where  wild  animals  are  reduced 
into  possession  by  a  trespasser.  The  property  in  such  animals 
vests  in  the  owner  of  the  sijil,^  but  the  trespasser  who  takes 
them  is  not  guilty  of  larceny  unless  the  possession  vested  in 
the  owner  before  the  taking.  If  the  trespasser  conceals  the 
animals  on  the  land  for  a  short  time  before  removing  them, 
he  is  not  guilty  of  larceny  when  he  takes  them  away.'^ 

§  276.  Value.  —  The  goods  must  be  of  some  value,  else  they 
cannot  have  the  quality  of  property.  The  common  law  held 
bills,  notes,  bonds,  and  choses  in  action  generally,  as  of  no  in- 
trinsic value,  and  therefore  not  subjects  of  larceny.*  Now,  by 
statute,  most  of  the  old  limitations  and  restrictions  are  done 
away  with.  Many  articles  savoring  of  the  realty,  and  most  if 
not  all  choses  in  action,  are  made  subjects  of  larceny.  The 
value  may  be  very  trifling,^  yet  no  doubt  nmst  be  appreciable,^ 
though  perhaps  not  necessarily  equal  to  the  value  of  the  small- 
est current  coin.'^  It  has  been  held,  however,  in  Tennessee, 
that  the  value  of  a  drink  of  whiskey  is  too  small  to  lay  the 
foundation  for  a  complaint  for  obtaining  goods  by  false  pre- 
tences, upon  the  ground  that  the  severity  of  the  penalty  shows 
that  the  legislature  could  not  have  intended  that  the  statute 
should  apply  to  so  trivial  an  act.^ 

§  277.  Taking  and  Carrying  away.  —  The  taking  and  carry- 
ing away  which  constitute  larceny  must  be  the  actual  caption 

1  C.  V.  Steimling,  156  Pa.  400,  27  Atl.  297,  M  659;  Bradford  o.  S.,  6 
Lea  (Tenn.),  634;  Jackson  w.  S.,  an^e.  In  Texas  the  rule  of  the  common 
law  is  not  in  force,  Alvia  f.  S.,  42  Tex.  Cr.  R.  424,  60  S.  W.  551;  so  in 
Wisconsin  by  statute,  Golonbieski  v.  S.,  101  Wis.  333,  77  N.  W.  189. 

■'  Blades  v.  Higgs,  11  H.  L.  C  621. 

8  Reg.  V.  Townley.  L.  R.  1  C.  C.  315,  12  Cox  C.  C.  59,  C.  256,  K.  255, 
M.  654;  Reg.  v.  Fetch,  14  Cox  C.  C.  116,  C.  260. 

"  4  Bl.  Com.  234:  ante,  §  272. 

5  P.  r.  Wiley,  3  llill  (X.  Y.),  194. 

6  Payne  v.  P..  6  Johns.  (N.  Y.)  103. 
">  Reg.  V.  Bingley,  5  C.  &  P.  002. 

•  Chapman  v.  S.,  2  Head  (Tenn.),  36. 


260  CRIMINAL  LAW.  [Sect.  277. 

of  the  property  by  the  thief  into  his  possession  and  control,  and 
its  removal  from  the  place  where  it  was  at  the  time  of  tlie  cap- 
tion. Tiie  possession,  however,  need  be  but  for  an  instant, 
and  the  removal  need  extend  no  furtlier  than  a  mere  cliange 
of  place.  Thus,  if  a  horse  be  taken  in  one  part  of  a  field  and 
led  to  another,  the  taking  and  carrying  away  are  complete ;  or 
if  the  goods  be  removed  from  one  part  of  a  house,  store,  or 
wagon  to  another,!  or  if  money  in  a  drawer  or  in  the  pocket  of 
a  person  be  actually  lifted  in  the  hand  of  the  thief  from  its 
place  in  the  drawer  or  pocket,  tliough  not  withdrawn  from  the 
drawer  or  pocket,  and  though  dropped  or  returned  on  discov- 
ery to  the  place  from  which  it  was  lifted  or  taken,  after  a 
^merely  temporary  possession,  however  brief,^  the  larceny  is 
complete.  So  where  the  defendant  snatched  A's  chain  from 
the  buttonhole  where  it  was  fastened  and  it  caught  on  a  lower 
button  there  was  a  sufficient  possession  by  the  defendant  to 
constitute  larceny.^  The  lifting  of  a  bag  from  its  place  would 
be  a  larceny,*  while  the  raising  it  up  and  setting  it  on  end, 
preparatory  to  taking  it  away,  would  not.^ 

But  if  the  property  is  not,  at  least  for  a  moment,  in  the 
entire  control  of  the  taker,  there  is  no  larceny.  Thus  where 
the  defendant  compels  A  to  lay  down  his  bundle,  but  is 
frightened  away  before  he  can  seize  it,^  or  simply  knocks 
money  from  A's  hand,^  or  attempts  to  steal  an  overcoat  on  a 
dummy  secured  by  a  chain,  and  is  arrested  before  he  can 
break  the  chain,^  there  is  no  larceny.     So  where  he  attempts 

1  S.  V.  Gazell,  30  Mo.  92.;  S.  v.  Taylor,  130  Mo.  06,  37  S.  W.  907; 
Johnson  v.  P.,  4  Denio  (N.  Y.),  361;  S.  v.  Craige,  89  X.  C.  47.5. 

2  Rex  V.  Thompson,  1  Moo.  C.  C.  78,  K.  221,  M.  674;  C.  v.  Luckis,  9.9 
Mass.  43L;  Harrison  v.  P.,  50  N.  Y.  518;  Eckels  v.  S.,  20  0.  St.  508; 
S.  V.  Chambers,  22  W.  V^a.  779. 

8  Fvex  V.  Lapier,  2  East  P.  C.  557,  K.  222;  Reg.  v.  Simpson,  1  Dears. 
C.  C.  421,  M.  675. 

4  Rex  V.  Walsh,  1  Moo.  C.  C.  14,  C.  380,  K.  220. 

5  Cherry's  Case,  2  East  P.  C.  556,  K.  218,  M.  673;  S.  v.  Jones,  65 
N.  C.  395. 

6  Rex  V.  Farral,  2  East  P.  C.  557. 

^  Thompson  v.  S.,  94  Ala.  535,  10  So.  520. 

8  P.  V.  Meyer,  75  Cal.  383,  17  P.  431;  accord:  Anon.,  2  East  P.  C. 
556  ;  Wilkinson's  Case,  ibid. 


Sect.  277.]  LARCENY.  261 

to  unscrew  a  shirt  stud  and  is  arrested  before  he  has  detached 
it;i  or  simply  touches  the  money  in  a  person's  pocket.^ 

Similarly,  if  the  defendant  although  having  taken  posses- 
sion of  the  goods,  has  not  moved  them,  there  is  lacking  the 
asportation  necessary  to  constitute  larceny.  Thus  where 
A  kills  an  animal  and  parily  skins  it,  thereby  taking  pos- 
session of  it,  but  does  not  move  it,  he  is  not  guilty  of  larceny.^ 
So  where  A  points  out  a  horse  in  B's  yard  as  his,  and  pur- 
ports to  sell  it  to  C,  but  is  detected  before  C  takes  it  away.* 
If  C  in  good  faith  drives  away  the  animal  it  is,  of  course, 
larceny  by  A.^ 

Taking  ordinarily  implies  a  certain  degree  of  force,  such  as 
may  be  necessary  to  remove  or  take  into  possession  the 
articles  stolen  ;  but  the  enticement  or  tolling  away  of  a  horse 
or  other  animal  by  the  offer  of  food  is  doubtless  as  much  a 
larcenous  taking  as  the  actual  leading  of  it  away  by  a  rope 
attached.*^  So  taking  porter  by  making  a  hole  in  the  barrel 
through  which  the  liquor  runs  out  by  gravity,^  or  taking 
goods  from  an  automatic  slot  machine  by  dropping  into  it  a 
brass  disk  is  larceny .^  So  taking  by  stratagem,  or  through 
the  agency  of  an  innocent  party,  or  by  a  resort  to  and  use 
of  legal  proceedings,  whereby,  under  forms  of  law,  possession 
is  got  by  a  person,  with  the  intent  of  stealing,  is  a  sufficient 

1  Rodriquez  v.  S.  (Tex.),  71  S.  W.  596. 

2  Tarrango  r.  S.,  44  Tex.  Cr.  R.  385,  71  S.  W.  597.  Compare  with 
the  above,  C.  v.  Barry,  125  Mass.  390. 

3  Melton  V.  S.,  105  Ala.  18,  16  So.  795;  S.  v.  Alexander,  74  N.  C.  232, 
M.  681.  But  the  slightest  moving  will  suffice  :  Kemp  o.  S.,  89  Ala.  52, 
7  So.  413 ;  Lundy  v.  S.,  60  Ga.  143 ;  S.  v.  Gilbert,  68  Vt.  188,  34  Atl. 
697. 

*  Long  V.  S.,  44  Fla.  134,  32  So.  870 ;  Hardeman  v.  S.,  12  Tex.  App. 
207;  Johnson  v.  S.,  34  Tex.  Cr.  R.  254,  30  S.  W.  228. 

5  S.  V.  Hunt,  45  la.  673;  Cummins  v.  C,  5  Ky.  L.  Rep.  200,  M. 
682;  Walls  v.  S.,  43  Tex.  Cr.  R.  70,  63  S.  W.  328.  Compare  Reg.  v. 
Jones,  1  C.  &  M.  611,  M.  764;  Rex  v.  Pitman,  2  C.  &  P.  423,  K.  213. 

6  S.  V.  Wisdom,  8  Porter  (Ala.),  511;  Edmonds  v.  S.,  70  Ala.  8;  S.  v. 
Whyte,  2  N.  &  McC.  (S.  C.)  174. 

-!  Reg.  V.  Wallis,  3  Cox  C  C.  67,  M.  678;  ante,  §  263. 
«  Reg.  V.  Hands,  16  Cox  C.  C.  188,  C.  383. 


262  CRIMINAL  LAW.  [Sect.  277a. 

taking  to  make  the  act  larcenous.^  In  such  cases  tlie  fraud 
is  said  to  supply  the  i)lace  of  force.  So  it  is  larcency  to  take 
gas  by  tapping  a  gaspipe  and  allowing  the  gas  to  flow  to  one's 
burner  without  passing  through  the  meter.^ 

The  taking  and  carrying  away  must  be  without  the  consent 
of  the  owner.  Where  the  owner  does  not,  either  personally 
or  by  his  agent,  transfer  possession  to  the  defendant  but 
authorizes  the  latter  to  take  possession  for  certain  purposes 
or  upon  complying  with  certain  conditions,  if  the  defendant 
takes  possession  otherwise  than  in  accordance  with  this 
qualified  consent,  it  is  larceny.  Thus  the  slot  macliine  case 
where  consent  to  the  taking  of  possession  is  conditioned  on 
the  dropping  in  of  a  legal  coin  ;  so  where  the  defendant  as  a 
cotton  sampler  was  authorized  to  take  sufficient  cotton  for 
a  sample ;  the  taking  of  more  than  was  necessary  for  that 
purpose  was  larceny .^  So  where  A  puts  a  box  of  matches  on 
the  counter  to  be  used  for  lighting  pipes  and  B  takes  the 
whole  box.* 

§  277a.  Larceny  by  Trick.  It  is  now  well  established  that 
if  the  consent  of  the  owner  to  part  with  the  possession  is 
secured  by  the  fraud  or  deceit  of  the  defendant,  the  taking, 
if  done  animo  furandi,  will  amount  to  larceny.  Thus  where 
the  defendant  induces  the  prosecutor  to  entrust  him  with 
funds  for  the  prosecutor's  relatives  ;^  so  where  a  person  by 
a  trick  gets  himself  appointed  agent,  which  gives  him  posses- 
sion of  the  goods,  a  misdealing  with  them  animo  furandi 
constitutes  larceny.^  So  where  defendant  gets  possession  of 
a  deed  for  a  pretended  temporary  purpose  and  then  records 

1  Rex  V.  Summers,  3  Salk.  194;  Keg.  v.  Solomons,  17  Cox  C.  C.  93; 
C.  D.  Barry,  125  Mass.  390. 

2  Reg.  V.  Firth,  L.  R.  1  C.  C.  172  ;  Reg.  v.  White,  6  Cox  C.  C.  213, 
C.  381,  M.  679;  C.  v.  Shaw,  4  All.  (Mass.)  308. 

3  S.  V.  MacRae,  111  N.  C.  665,  13  S.  E.  173. 

4  Mitchum  v.  S.,  45  Ala.  29,  M.  711.  See  also  Washington  v.  8.,  106 
Ala.  58,  17  So.  516;  S.  v.  Meldrum,  41  Or.  380,  70  P.  526  ;  Peck  v.  S., 
9  Tex.  A  pp.  70.  Compare  Carrier's  Case  Y.  B.  13  Ed.  IV,  9,  pi.  5,  C. 
296,  K.  223,  M.  734,  opinion  of  Laicon,  J. 

6  Macino  v.  P.,  12  Hun  (N.  Y.),  127. 
6  Case  V.  S.,  26  Ala.  17. 


Sect.  278.]  LARCENY.  263 

it,  this  is  larceny .1  So  where  defendant  by  falsely  pretending 
to  be  the  person  for  whom  a  letter  is  sent  induces  the  post- 
master to  deliver  it  to  a  third  person  at  his  order.^ 

It  has  also  been  said  that  where  the  bailee  takes  the  prop- 
erty animo  furandi  the  offence  of  larceny  is  complete.^  If 
the  bailee  has  by  word  or  act  fraudulently  induced  the  delivery, 
the  case  is  clear ;  if,  however,  he  does  nothing  to  deceive,  it 
would  seem  difficult  to  bring  the  case  within  the  ordinary 
principles  of  larceny.  So  where  the  defendant  took  a  watch 
from  the  owner  who  allowed  him  to  do  so  under  the  belief 
that  he  would  keep  it  for  him  this  was  held  no  larceny.* 
Ordinarily,  however,  the  facts  show  that  the  consent  of  the 
owner  to  the  delivery  of  possession  was  due,  either  directly  or 
indirectly,  to  the  deceit  of  the  defendant,  or  that  there  was  no 
consent  at  all.^ 

§  278.  Obtaining  of  Title. — The  law  holds,  somewhat  in- 
consistently, that  if  possession  only  be  obtained  by  fraud  the 

1  S.  V.  Hall,  85  Mo.  669. 

2  Reg.  V.  Kay,  7  Cox  C.  C.  289,  M.  690.  For  other  instances  of 
larceny  by  trick  see  Rex  v.  Semple,  1  Leach,  4th  ed.  420,  M.  742;  Rex  v. 
Hench,  R.  &  R.  163,  K.  264;  Verberg  v.  S.,  137  Ala.  73,  34  So.  8±8;  P. 
V.  Campbell.  127  Cal.  278,  59  P.  593  ;  Finkelstein  v.  S.,  105  Ga.  617,  31 
S.  E.  589;  Bergman  v.  P.,  177  111.  244,  52  N.  E.  363;  Crura  v.  S.,  148 
Ind.  401,  47  N.  E.  833 ;  P.  v.  Woodruff,  47  Kan.  151,  27  P.  842  ;  C.  v. 
Flynn,  167  Mass.  460,  45  N.  E.  924 ;  S.  v.  Lindenthal,  5  Rich.  Law  (S.  C), 
237. 

A  forliori  it  is  larceny  where  the  possession  is  taken  by  a  combination 
of  fraud  and  force  at  once  deceiving  and  overpowering  the  owner,  Reg. 
V.  McGrath,  L.  R.  1  C.  C.  R.  2U.5,  11  Cox  C.  C.  347,  K.  262,  M.  792. 

And  semble  it  is  larceny  if  consent  is  fraudulently  procured  to  any  one 
of  the  elements  of  the  crime.  Thus  where  the  defendant,  animo  furandi, 
took  possession  of  a  hog  but  the  asportation  was  with  the  consent  of  the 
owner,  the  fact  that  the  consent  was  procured  by  fraud  made  the  crime 
larceny,  Frazier  v.  S.,  85  Ala.  17,  4  So.  691. 

8  S.  V.  Thurston,  2  McMull.  (S.  C.)  382.  See  also  Reg.  v.  Evans,  C. 
&  M.  632,  M.  732 ;  Reg.  v.  Hey,  2  C.  &  K.  983 ;  Rex  v.  Stock,  1  Moo. 
C.  C.  87  ;  Johnson  v.  P.,  113  111.  99. 

4  Reg.  V.  Reeves,  5  Jurist  (N.  S.),  716,  M.  708. 

5  Shafer  i'.  S.  (Ala.),  8  So.  670  ;  Fitzgerald  ;;.  S.,  118  Ga.  855,  45  S.  E. 
6G6 ;  S.  V.  Fisher,  106  la.  658,  77  N.  W.  456  ;  Harris  v.  S.  (Tex.),  65 
S.  W.  921. 


264 


CRIMINAL  LAW. 


[Sect.  278. 


offence  is  larceny,  but  if  possession  and  a  title  to  the  property 
be  obtained  by  fraud,  it  is  not,  as  the  fraud  nullifies  tlie  con- 
sent to  the  taking,  but  not  the  consent  that  the  title  should 


pass. 


And  this  inconsistency  arises  out  of  the  doctrine  gen- 
erally received  that  trespass  is  a  necessary  ingredient  in  lar- 
ceny, and  while  a  man  may  be  a  trespasser  who  holds  goods 
by  a  possession  fraudulently  obtained,  ho  cannot  be  a  trespasser 
by  holding  goods  by  a  title  fraudulently  obtained.^  The  con- 
sent of  the  owner,  procured  by  fraud,  that  he  shall  have  title, 
takes  the  case  out  of  the  category  of  larceny.  But  if  by  the 
same  fraud  the  possession  and  title  to  goods  are  obtained  from 
a  servant,  agent,  or  bailee  of  the  owner,  who  has  no  right  to 
give  either  possession  or  title,  as  where  a  watch  repairer  de- 
livers the  watch  to  a  person  who  personates  the  owner,  it  is 
larceny.3  It  is  difficult  to  see,  except  upon  the  technical  ground 
above  stated,  why  a  title  procured  by  fraud  is  any  more  by 
consent  of  the  owner  than  a  possession  so  procured.  The 
distinction  is  a  source  of  confusion,  not  to  say  a  ground  of 
reproach. 

ItfollowSj_tiierefor£j_Uia^^ 
question  i^jvvMiether3;^no^JJxeawn^^ 
Tf  lie  Idd  so  i nteiidjjthejoffenceJs_o^^ 

iflTe  i ntend£d_jto,,,^ass__oiilyjDOS^^  . 

TKrfollowjij^^^ses_^jlMnus^^  A,  while 

i'lTB'^s  company,  pretends  to  find  a  valuable  object ;  he  admits 
B's  right  to  share  therein  and  proposes  to  sell  B  his  (A's) 
share  ;  B  agrees  and  pays  A  for  his  interest  in  what  turns 
out  to  be  a  worthless  article  ;  this  is  obtaining  money  by  false 
pretences  as  A  intended  to  part  with  the  title  to  his  money,  as 
well  as  the  possession  thereof  ;5  so  where  A  by  pretending 
to  put  3  shillings  into  a  purse  induces  B  to  pay  him  1  shilling 

1  Reg.  V.  Prince,  L.  R.  1  C  C.  150,  11  Cox  C.  C.  193,  C.  270. 

2  See  2  Bish.  New  Cr.  Law,  §§  808-812. 

3  Ibid.;  C.  V.  Collins,  12  All.  (Mass.)  181;  S.  v.  Koplan,  167  Mo.  298, 
66  S.  W.  967 ;  Hite  v.  S.,  9  Yerg.  (Tenn.)  198. 

*  Reg.  V.  Bunce,  1  F.  &  F.  .523,  C.  311  ;  Reg.  v.  Buckraastev,  16  Cox 
C.  C.  U9,  C.  316;  Reg.  v.  Middleton,  L.  R.  2  C.  C.  38,  K.  266,  M.  794. 
5  Reg.  V.  Wilson,  8  C.  &  P.  Ill,  K.  348,  M.  779. 


Sect.  278.]  LARCENY.  265 

therefor ;  ^  so  where  A,  pretending  to  put  money  in  B's  till, 
deceives  B  into  giving  him  a  larger  amount  of  money  than  is 
really  due  him ;  ^  so  where  A  by  falsely  pretending  to  B  that 
he  can  dispose  of  goods  for  him,  induces  B  to  ship  the  goods 
to  him  and  send  him  the  bill  of  lading  therefor ;  ^  so  where 
the  defendant,  by  falsely  pretending  to  be  ill,  induces  A  to 
give  him  money  to  buy  medicine.^  On  the  other  hand,  where 
in  the  case  of  pretended  finding  of  a  valuable  object,  the 
trickster  left  it  with  the  victim  and  received  from  him  certain 
coins  as  a  pledge  for  the  safe  keeping  of  the  find  till  the  next 
day,  this  was  larceny  by  trick,  since  the  prosecutor  did  not 
intend  to  part  with  his  property  in  the  coins,  but  only  the 
temporary  possession  ;5  so  where  the  defendant  induces  A  to 
deliver  to  him  certain  property,  giving  therefor  worthless 
notes,  or  promising  to  pay  therefor  at  a  given  time  ;  this  is 
larceny  by  trick  where  the  contract  provides  that  title  shall 
remain  in  A  till  the  payment  is  actually  made;^  so  where, 
although  there  was  no  express  contract,  the  jury  find  that  it 
was  in  fact  the  intention  of  the  owner  not  to  part  with  the 
title  until  he  had  received  payment.^ 

1  Reg.  V.  Solomons,  17  Cox  C.  C.  93. 

2  Reg.  V.  Williams,  7  Cox  C.  C.  355,  M.  786. 

3  Zink  V.  P.,  77  N.  Y.  114. 

*  Collins  V.  S.,  15  Lea  (Teun.),  68.  Compare  Pease  v.  S.,  94  Ga.  615, 
21  S.  E.  588. 

8  Rex  ;;.  Patch,  Leach,  3d  ed.  273,  M.  778  ;  Rex  v.  Moore,  Leach,  3d 
ed.  354. 

6  Rex  V.  Pratt,  1  Moo.  C.  C.  250;  P.  v.  Rasche,  73  Cal.  378,  15  P.  13; 
March  v.  S.,  117  Ind.  547,  20  N.  E.  444;  Wevman  v.  P.,  4  Hun  (N.  Y.), 
511 ;  Martin  v.  Terr.,  4  Okl.  105,  43  P.  1067. 

T  Reg.  V.  Cohen,  2  Den.  C.  C.  249,  M.  769.  The  same  principles 
apply  to  the  gambling  cases.  If  A  is  induced  by  B  to  deposit  money 
■with  B's  confederate  as  stakeholder,  the  latter  gets  custody,  or,  at  most, 
a  possession  by  trick  and  his  retention  is  larceny  :  Rex  v.  Robson,  R.  & 
R.  413,  M.  783;  P.  v.  Shaughnessy,  110  Cal.  598,  43  P.  2;  U.  S.  v.  Mur- 
phy, McArth.  &  M.  (D.  C.)  375  ;  P.  r.  Stinson,  43  111.  397;  Defrese  v. 
S.,3  Heisk.  (Tenn.)  53;  S.  v.  Skilbrick,  25  Wash.  555,  66  P.  53,  M.  785; 
so  where  the  prosecutor  is  induced  by  a  trick  to  "stake  "  one  of  the  eon- 
federates:  Doss  v.  P.,  158  111.  660,  41  X.  E.  1093;  Miller  v.  C,  78  Ky. 
15 ;  P.  V.  Shaw,  57  Mich.  403,  24  N.  W.  121 ;  P.  v.  Loomis,  67  N.  Y. 
322.     On  the  other  hand,  if  the  prosecutor  is  induced  by  the  fraud  to 


266  CRIMINAL  LAW.  [Sect.  278a. 

§  278a.  Larceny  by  Trick  from  Servant.  —  In  the  case  of  lar- 
ceny of  goods  in  tlie  custody  of  a  servant  the  question  is  two- 
fold :  first,  whether  the  servant  had  the  power  of  passing  title, 
and  second,  whether  he  intended  to  do  so.  If  a  servant  or 
agent  who  has  general  control  of  the  business  of  the  master 
with  power  to  pass  both  possession  and  property  in  the  ordinary 
course  of  business,  is  tricked  into  disposhig  of  the  goods  of 
the  master,  meaning  to  pass  both  possession  and  property, 
his  act  is  as  effectual  in  this  regard  as  would  be  the  act  of  the 
master ;  and  consequently  the  offence  is  not  larceny  but 
obtaining  by  false  pretences.  Thus,  where  in  one  case,  a 
clerk  in  general  charge  of  a  pawnshop,  and  in  another  a  teller 
in  a  bank,  were  deceived  into  paying  out  money  on  worthless 
securities  or  notes,  the  crime  was  held  not  to  be  larceny .^ 

In  principle,  it  would  seem  that  the  difference  between  a 
servant  with  general  power  to  pass  title  and  one  with  limited 
powers,  was  of  degree  rather  than  of  kind.  In  either  case, 
the  servant  must  determine  when  the  circumstances,  broad  or 
narrow,  have  arisen  under  which  he  can  pass  title.  Hence, 
although  the  states  of  fact  under  which  a  servant  with  limited 
power  can  pass  title  may  ])e  few  or  even  limited  to  a  single 
instance,  if  that  particular  state  of  facts  seems  to  him,  although 
erroneously,  to  exist  and  he  then  acts  for  his  master  and  with 
intent  to  pass  title,  it  would  seem  that  he  could  do  so  as 
effectually  as  could  the  servant  with  general  powers  had  he 
been  similarly  deceived.  Consequently  the  crime  would  be 
here,  as  before,  not  larceny  but  false  pretences.^ 

As  a  matter  of  decision,  however,  in  the  case  of  a  servant 

believe  that  he  has  lost  the  wager  and  consents  to  the  passing  of  the  title, 
this  is  obtaining  by  false  pretences:  Rex  v.  Nicholson,  Leach,  3d  ed. 
698,  M.  781;  Rex  v.  Moore,  Leach,  3d  ed.  354;  compare  S.  v.  Murphy, 
90  Mo.  App.  548;  so  if  he  is  induced  -to  lend  one  of  the  confederates 
money,  relying  simply  on  his  promise  to  pay  back :  Reg.  v.  Riley,  1  Cox 
C.  C.  98.  These  principles  would  seem  to  have  been  erroneously  applied 
in  Reg.  v.  Buckmaster,  16  Cox  C.  C.  339,  C.  316. 

1  Rex  V.  Jackson,  1  Moo.  C.  C.  119  ;  Reg.  v.  Prince,  L.  R.  1  C.  C.  150, 
11  Cox  C.  C.  193,  C.  270;  but  compare  Reg.  v.  Middleton,  L.  R.  2  C.  C. 
38,  K.  266,  M.  794  ;  and  C.  v.  Lawless,  103  Mass.  425. 

2  Hex  V.  Parks,  2  East  P.  C.  671,  M.  774. 


Sect.  278a.]  LARCENY.  267 

with  authority  to  pass  title  only  under  certain  narro\r  condi- 
tions, the  rule  appears  to  be  that  where  he  is  tricked  into  de- 
livering the  goods  and  intends  to  pass  both  possession  and 
title,  if  in  reality  the  circumstances  were  not  those  under 
which  he  was  authorized  to  pass  title,  the  trickster  will  get 
only  possession  and  hence  be  guilty  of  larceny  by  trick.  Thus, 
where  a  servant  is  sent  with  a  package  and  told  to  deliver  it 
only  for  cash  or  its  equivalent,  and  the  defendant,  by  tendering 
him  what  the  servant  believes  to  be  good  money  but  is  in  reality 
a  counterfeit  or  a  worthless  check,  persuades  him  to  deliver 
both  possession  and  title,  so  far  as  he  can,  the  crime  has  been 
held  to  be  larceny  and  not  false  pretences.^  Of  course,  if  the 
servant  has  no  power  under  any  circumstances  to  do  any- 
thing more  than  transfer  the  possession,  it  is  clear  that  a 
person  receiving  goods  from  him  will  acquire  only  possession, 
and  if  that  is  obtained  by  trick  and  animo  furandi,  there  is  a 
larceny.  Thus  where  the  servant  of  a  carrier  was  induced  to 
leave  goods  at  the  wrong  destination,  it  was  held  larceny .^  So 
where  a  stable  boy  is  sent  to  deliver  a  horse  to  a  person  who 
has  already  purchased  it,  and  is  by  trick  persuaded  to  deliver 
the  horse  to  the  defendant.^  The  same  principle  applies  to 
a  bailee  who  has  only  possession  and  no  authority  under  any 
circumstances  to  transfer  the  title.^ 

If  the  servant,  having  power  to  pass  title  under  certain  cir- 
cumstances, attempts  to  pass  title  not  because  he  believes 
those  circumstances  to  exist,  but  entirely  independently  of 
such  authority,  he  can  pass  nothing  but  possession.  Thus 
where  A  has  authority  to  sell  grain  only  in  the  day-time,  an 
attempted  sale  at  night,  not  being  under  even  color  of  author- 

1  Reg.  V.  Stewart,  1  Cox  C.  C.  174,  K.  3-54,  M.  776;  Reg.  v.  Webb,  5 
Cox  C.  C.  154,  C.  32.5;  Reg.  v.  Small,  8  C.  &  P.  46. 

2  Reg.  V.  Little,  10  Cox  C.  C.  559 ;  Rex  v.  Lougstreath,  1  Moo.  C.  C. 
137. 

3  C.  V.  Rubin,  165  Mass.  453,  43  N.  E.  200.  Compare  Rex  v.  Pearce, 
2  East  P.  C.  603;  Rex  v.  Wilkins,  2  East  P.  C.  673  ;  Reg.  v.  Simpson,  2 
Cox  C.  C.  235. 

*  Rex  V.  Campbell,  1  Moo.  C.  C.  179;  C.  v.  Collins,  12  All.  (.Mass.) 
181 ;  a  fortiori  when  the  servant  or  bailee  has  no  power  to  pass  even 
possession.     See  §  278,  ante. 


268  CRIMINAL  LAW.  [Sect.  278a. 

itj,  passes  only  possession.^  So  where  A  is  authorized  to  de- 
liver certain  money  to  B  at  three  o'clocl^:  and  C  by  tricl^  induces 
A  to  deliver  it  to  him  at  one  o'clock  ;  ^  so  where  A  is  sent  with 
a  parcel  for  B  with  instructions  to  deliver  it  only  for  cash  and 
by  collusion  with  B  accepts  a  worthless  check.^  All  that  the 
defendant  can  acquire  in  such  cases  is  possession,  and  if  the 
person  in  charge  of  the  goods  had  only  custody,  with  not  even 
apparent  authority  to  part  with  eitlier  possession  or  title  under 
the  circumstances,  the  taking  would  be  not  larceny  by  trick, 
but  invito  domino  in  the  strict  sense  of  the  phrase. 

Assuming  the  power  of  the  servant  to  transfer  the  title  to 
the  property  under  the  given  circumstances,  his  intent  to  do  so 
must  also  exist.  For  of  course  if  the  servant  is  tricked  into 
giving  up  the  goods  without  intending  to  pass  title  or  possession 
there  is  larceny.  Thus  where  the  servant  of  a  warehouseman 
delivers  goods  to  a  fellow  servant  upon  his  representation  that 
their  master  had  sent  for  them,  there  was  no  intent  to  pass 
even  possession,  and  a  felonious  conversion  was  larceny.*  So 
where  a  servant  is  sent  with  clothing  and  the  defendant  per- 
suades the  servant  to  turn  over  the  clothing  for  examination, 
this  is  larceny  iiivito  domino,  or  by  trick  according  as  the  ser- 
vant meant  to  pass  only  custody  or  the  possession.^  So  also 
when  the  possession  is  obtained  by  means  of  a  combination  of 
trickery  and  force.^  In  general,  the  same  principles  as  to 
whether  possession  or  title  is  intended  to  pass  apply  as  where 
the  owner  himself  is  dealing  with  the  property.'^ 

In  Iowa,  and  perhaps  other  States,  the  rule  that  there  is  no 
larceny  where  there  is  no  trespass,  and  no  trespass  where  there 

1  S.  V.  McCarty,  17  Minn.  76;  accord,  Reg.  v.  Hornby,  1  C.  &  K.  305. 

2  P.  V.  McDonald,  43  N.  Y.  61,  M.  701;  accord,  Rex  v.  Sheppard,  9  C. 
&  P.  121. 

3  Shipply  V.  P.,  86  N.  Y.  37.5. 

4  Reg.  V.  Robins,  Dears.  C.  C.  418,  C.  321. 

6  S.  V.  Hall,  76  la.  8.5,  40  N.  W.  107;  Gardiner  v.  S.,  55  N.  J.  L.  17, 
26  Atl.  30:  St.  Valarie  v.  P.,  64  Rarb.  (N".  Y.)  426.  See  also  Rex  v.  Gil- 
bert, 1  Moo.  C.  C.  185;  Rex  v.  Pratt,  ibid.  250. 

6  P.  V.  Camp,  56  Mich.  548;  C.  v.  Cruikshauk,  138  Pa.  194,  20  Atl. 
937. 

7  See  §§  277o,  278,  285,  317. 


Sects.  279, 280.]  LARCENY.  269 

is  consent  obtained  by  fraud,  has  been  abrogated  by  statute  ;^ 
and  in  Tennessee  it  is  said  that  the  fraud  constitutes  a  trespass, 
such  as  it  is.^ 

§  279.  Taking^  of  Custody  merely.  —  Where  one  takes  the 
custody  of  goods  merely,  as  distinguished  from  possession, 
the  crime  of  larceny  cannot  be  committed.  So  where  one 
moves  the  goods  from  one  portion  to  another  of  the  owner's 
shop,  in  order  that  they  may  be  more  easily  stolen,  it  is  not 
larceny,  for  no  possession  is  taken.  This  question  will  be 
more  fully  considered  later.^ 

§  280.  Taking.  Finding  Lost  Property.  —  Lost  property 
found  and  appropriated  may,  under  certain  circumstances, 
be  said  to  be  taken.  Thus,  if  a  person  find  a  piece  of  per- 
sonal property,  about  which  there  are  marks  or  circumstances 
which  afford  a  clue  to  the  ownership,  and  from  which  he  has 
reason  to  believe  that  inquiry  might  result  in  ascertaining  the 
ownership,  and  immediately  upon  finding,  without  inquiry, 
appropriate  it  to  his  own  use,  this  is  a  taking  sufficient  to 
constitute  the  act  larceny.^  And  it  is  not  necessary  that  the 
means  or  circumstances  which  the  finder  should  consider  as 
possible  means  of  identification  should  be  confined  to  marks 
upon  the  object ;  the  mere  value  of  the  article  may  be  so  great 
that  the  finder  should  reasonably  know  it  could  be  returned  to 
its  owner.^  On  the  other  hand,  if  there  be  no  mark  or  circum- 
stance giving  any  reason  to  suppose  that  the  ownership  can  be 
ascertained,  an  immediate  appropriation  is  not  a  taking  which 
is  larcenous.^     If  there  is  not  a  purpose  at  the  time  of  finding 

1  S.  V.  Brown,  25  la.  561. 

2  Defrese  r.  S.,  3  Heisk.  53.     See  also  S.  v.  Williams,  35  Mo.  229. 
a  Post,  §  289. 

*  Compare  Milburne's  Case,  1  Lewin,  251. 

5  Brooks  V.  S.,  35  O.  St.  46,  M.  724.  In  general,  to  the  effect  that  if 
for  any  reason  the  finder  has  reasonable  grounds  for  believing  that  the 
propei-ty  can  be  restored,  the  taking,  animo  furandi,  is  larceny,  see  Reg. 
V.  Christopher,  8  Cox  C.  C.  91;  Reg.  v.  Moore,  8  Cox  C.  C.  416;  S.  c. 
Lew,  23  Minn.  104;  S.  v.  Clifford,  14  Nev.72;  Baker  v.  S.,  29  0.  St.  184; 
McCarty  v.  S.,  36  Tex.  Cr.  R.  135,  35  S.  W.  994. 

6  Reg.  V.  Thurborn,  1  Den.  C.  C.  387,  C.  332,  K.  276,  M  720;  Griggs 
V.  S.,  58  Ala.  425;  Lane  v.  P.,  10  111.  305;  S.  v.  Dean,  49  la.  73;  C.  v. 


270  CRIMINAL  LAW.  [Sect.  280. 

to  appropriate,  a  subsequent  appropriation  will  not  amount  to 
larceny.^ 

For  this  reason,  it  becomes  important  to  note  not  only  when, 
but  of  what,  the  person  takes  possession.  The  law  seems  to 
be  that  a  person  takes  possession  of  an  object  only  when  he 
not  only  assumes  physical  control  over  it,  but  does  so  with  the 
intent  to  control  that  object  either  as  a  specific  object  or  as 
one  of  a  class.  Thus,  where  a  defendant  bought  a  bureau 
simply  as  such,  he  did  not  thereby  take  possession  of  money 
in  a  secret  drawer;  so  that  when  he  did  later  find  the  money 
and  assume  control  over  it,  animo  furancli,  he  was  guilty  of 
larceny .2  So  where  the  defendant  takes  possession  of  what 
he  believes  to  be  an  empty  trunk  and  later  discovers  clothes 
therein.^  On  the  other  hand,  where  a  canal  company  ordered 
the  canal  to  be  cleaned  with  the  intent  of  returning  to  the 
owners  the  lost  articles  at  the  bottom  thereof,  a  servant  then 
taking  articles  therefrom,  animo  furandi,  was  guilty  of  larceny 
from  the  company;^  so  where  a  defendant  received  a  letter 
containing  a  draft  and  other  enclosures  and  received  it  intend- 
ing to  take  whatever  was  therein,  a  subsequent  conversion  of 
the  draft,  animo  furandi,  was  not  larceny.^  So  where  defend- 
ant robbed  A  of  his  overcoat  in  which  there  was,  unknown  to 
A,  a  watch,  an  instruction  that  if  the  defendant  did  not  know 
at  the  time  that  tlie  watcli  was  in  the  pocket,  he  could  not  be 
convicted  of  the  robbery  thereof  was  rightly  refused  as  it  did 
not  leave  to  the  jury  the  question  of  his  intent  to  take  what- 
ever might  be  in  the  coat.^ 

Titus.  116  Mass.  42,  1  Am.  Cr.  Repts.  (Hawley)  416,  and  note ;  Beatty 
r.  S.,  61  Miss.  18  (semhle);  P.  v.  Cogdell,  1  Hill  (N.  Y.),  94;  Reed  v.  S., 
8  Tex.  App.  40. 

1  Reg.  V.  Preston,  5  Cox  C.  C  390,  2  B.  &  H.  Lead.  C  C.  25,  and  note; 
Reg.  V.  Matthews,  12  Cox  C.  C.  489,  M.  333 ;  Ransom  v.  S.,  22  Conn.  l."33; 
Baker  v.  S.,  29  O.  St  181 ;  P.  v.  Anderson,  14  Johns.  Rep.  (X.  Y.)  294; 
S.i-.Arkle,  116  N.C.  1017,21  S.  E.  408;  Gosler  v.  S.  (Tex.),  56  S.  W.  61. 

2  Merry  v.  Green,  7  M.  &  W.  623,  C.  217,  M.  715;  Cartwright  v.  Green, 
8  Vez.  405,  C.  215;  Durfee  v.  Jones,  11  R.  I.  588. 

8  Robinson  v.  S.,  11  Tex.  App.  403.  *  Reg.  r.  Rowe,  Bell  C.  C.  93. 

5  Rex  V.  Mucklow,  1  Moo.  C.  C.  160. 

«  Stevens  v.  S.,  19  Xeb.  647,  28  N.  W.  304.  Compare,  on  the  general 
question  of  possession,  Holmes  Common  Law,  ch.  vi. 


Sects.  281,  282.]  LARCENY.  271 

§  281.  Property  Left  by  Mistake.  —  It  is  imjiortant  to  observe 
the  distinction  between  lost  and  mislaid  property.  In  the. 
latter  case,  as  Avliere  a  customer  iiniutentionally  leaves  his 
purse  upon  the  counter  of  a  store,^  and  the  trader  takes  it  and 
appropriates  it  to  his  own  use  without  knowing  whose  it  is,  or 
a  passenger  unintentionally  leaves  his  baggage  at  a  railway 
station,-  and  a  servant  of  the  company,  whose  duty  it  is  to  re- 
port the  fact  to  his  superior,  neglects  to  do  so,  nnd  appropri- 
ates the  baggage  to  his  own  use,  the  act  in  each  case  is  larceny, 
because  there  was  a  likelihood  that  the  owner  would  call  for 
the  property,  and  therefore  in  neither  case  at  the  time  of  ap- 
propriation was  the  property  strictly  lost  property.  There 
was  a  probability  known  to  the  taker  in  each  case  that  the 
owner  might  be  found,  i.  e.,  would  appear  and  claim  property 
which  he  had  by  mistake  left.  But  the  mere  fact  that  the 
servant  has  the  duty  of  turning  over  the  property  to  his  master 
will  not  make  a  taking  thereof  larceny,  although  it  may  impose 
a  civil  liability.'^ 

§  282.  Property  Delivered  by  Mistake.  —  "Where  one  receives 
from  another,  —  the  delivery  being  by  mistake  and  therefore 
unintentional,  —  a  sura  of  money  or  other  property,  and  the 
receiver  at  the  time  knows  of  the  mistake,  yet-  intends  to 
keep  it  and  appropriate  it  to  his  own  use,  this  has  been  held 
to  be  a  taking  sufhcient  to  constitute  larceny  ;  as  where  a 
depositor  in  a  savings  bank,  presenting  a  warrant  for  ten 
dollars,  receives  through  a  mistake   of  the  clerk  a  hundred 


1  Reg.  r.  West,  6  Cox  C.  C.  41.5;  Lawrence  r.  S.,  1  Humph.  (Tenn.) 
228,  U.  728. 

2  Reg.  V.  Pierce,  6  Cox  C.  C  117.  C.  331.  See  also  Rex  v.  Wynne,  2 
East  P.  C.  664;  Reg.  v.  West,  Dears.  402;  S.  v.  McCann,  19  Mo.  249; 
S.  V.  Farrow,  Phillips  (X.  C),  161  ;  Pritchett  v.  S.,  2  Sneed  (Tenn.),  28.3  ; 
Pyland  r.  S.,  4  Sneed  (Tenn.),  357. 

8  Water  Co.  v.  Sharinan  [1S96]  2  Q.  B.  D.  44.  As  to  the  respective 
rights  of  finders  of  lost  goods  and  the  owner  of  the  property  whereon  they 
are  found,  see  Amory  v.  Delamirie,  1  Str.  505:  Elwes  v.  (ras  Co.,  33  Ch. 
Div.  562;  Bridges  v.  Hawksworth,  21  L.  J.  Q.  B.  75;  Boweu  v  Sullivan, 
62  Ind.  281;  Mo.\voy  v.  Medina,  11  All.  (Mass.)  548;  Hamaker  v. 
Blauchard,  90  Pa.   St.  377. 


272  CRIMINAL  LAW.  [Sect.  283. 

dollars. 1  The  objection  to  this  view  as  a  matter  of  principle 
is  that  the  person  in  possession  of  the  coin  does,  as  a  matter 
of  fact,  intend  to  transfer  possession  to  the  person  before  him, 
and  the  latter  intends  to  take  possession  ;  and  though  he  may 
do  so  animo  furandi,  it  is  difficult  to  see  that  it  is  done  invito 
domino.^ 

If  the  receiver  did  not  know  of  the  mistake  at  the  time  of 
taking,  his  intention  to  appropriate,  formed  later,  will  not 
make  the  act  larceny.^  So  wliere  a  mail  carrier  delivers  a 
letter  to  the  wrong  person  and  the  latter  takes  it  in  good 
faith,  and  later,  discovering  the  mistake,  keeps  it,  there  is  no 
larceny.^  This  latter  principle  would  seem  to  apply  where 
one  receives  a  coin  of  large  value  by  mistake  for  one  of  smaller 
value,  and  afterwards,  on  discovering  the  mistake,  appropriates 
it.  This  should  not  be  held  larceny.^  So  where  a  child  gave  a 
$20  gold  piece  to  the  defendant  and  he  took  it  with  no  intent 
to  steal,  although  knowing  what  the  coin  was,  and  on  dis- 
covering that  the  child  believed  it  was  a  dollar  determined  to 
keep  the  coin,  the  offence  was  held  not  to  be  larceny.^  The 
later  discovery  here  was  not  of  the  nature  of  the  coin  but  of 
the  mind  of  the  owner,  but  the  principle  would  seem  to  be  the 
same  as  in  the  other  cases. 

§  283.  Taking.  Servant.  —  Where  property  is  taken  by  a 
servant,  in  whose  custody  it  is  placed  by  the  master,  as  of 
goods  in  a  store  for  sale,  or  of  horses  in  a  stable  for  hiring, 

1  Reg.  V.  Middleton,  L.  R.  2  C.  C.  38,  12  Cox  C.  C.  260,  417,  1 
Green's  Cr.  Law  Rep.  4,  K.  266,  M.  704;  Wolfstein  v.  P.,  6  Hun  (X.  Y.), 
121;  Thompson  v.  S.  (Tex.),  55  S.  W.  330. 

2  See  the  dissenting  opinion  of  Brarawell,  B.,  in  Reg.  v.  Middleton, 
ante. 

8  Reg.  V.  Flowers,  16  Cox  C.  C.  33,  C.  229. 

^  Rex  V.  Mucklow,  1  Moo.  C.  C.  160  ;  Reg.  v.  Davies,  Dears.  C.  C.  640. 

*  Bailey  v.  S.,  58  Ala.  414  ;  accord,  Reg.  v.  Jacobs,  12  Cox  C.  C.  151 ; 
Reg.  V.  Hehier  [1895]  2  Jr.  709,  K.  300,  M.  747;  Cooper  v.  C,  22  Ky. 
L.  R.  1627,  60  S.  W.  938;  contra,  S.  v.  Ducker,  8  Or.  394  ;  Bergeron 'y. 
Peyton,  106  Wis.  377,  82  N.  W.  291  (statutory).  See  Reg.  v.  A.shwell, 
L.  R.  16  Q.  B.  D.  190,  16  Cox  C.  C.  1,  C.  220,  K.  292,  where  the  English 
judges  were  equally  divided  on  the  question. 

«  Jones  V.  S.,  97  Ga.  430,  25  S.  E.  319. 


Sect.  283.]  LARCENY.  273 

or  of  securities  of  a  banker,  or  of  money  in  a  table,  all  the 
property  being  still  in  the  possession  of  the  owner  by  and 
through  the  servant,  the  act  of  taking  by  the  servant  is 
larceny.  The  servant  has  custody  merely  for  the  owner,  who 
has  the  possession  and  property. ^  And  the  servant  need  not 
be  a  general  one  ;  the  possession  still  remains  in  the  master 
even  though  the  relation  be  created  only  for  a  particular  trans- 
action.2  The  question  of  possession  is  independent  of  any 
actual  control  by  tiie  master.  Thus  where  a  master  sends 
his  servant  away  with  a  bill  to  cash,  or  goods  to  deliver,  the 
property,  though  in  the  actual  control  of  the  servant,  is  still  in 
the  possession  of  the  master.^  But  the  property  must  be  en- 
trusted to  the  servant  as  such.^ 

If,  however,  the  servant  receives  goods  for  his  master  from 
a  third  person,  he  is  held  to  get  the  possession,  and  not  merely 
the  custody,  and  an  appropriation  of  the  goods  is  therefore  not 
larceny.^     And  so  where  the  servant  receives  goods  from  a 

1  Crocheron  v.  S.,  86  Ala.  64,  5  So.  649;  Powell  v.  S.,  34  Ark.  693; 
P.  V.  Perini,  94  Cal.  573,  29  P.  1027;  Marcu.s  v.  S.,  26  Ind.  101;  Gill  v. 
Bright.  6  T.  B.  Mon.  (Ky.)  130;  C.  v.  Berry,  99  Mass.  428;  P.  v.  Wood, 
2  Park.  C.  C  (N.  Y.)  22;  S.  v.  Jarvis,  63  N".  C.  556;  Roeder  v.  S.,  39 
Tex.  Cr.  R.  199, 45  S.  .W.  570.  Compare  Bismarck  v.  S.,  (Tex.),  73  S.  W. 
965. 

2  Reg.  V.  Harvey,  9  C.  &  P.  353.  See  Reg.  v.  Jones,  1  C.  &  M.  611,  M. 
764;  Rex  v.  Hughes,  1  Moo.  C.  C.  370.  Compare  Reg.  v.  Goodbody,  8 
C.  &  P.  665;  Reg.  v.  Hey,  2  C.  &  K.  983  ;  Reg.  v.  Gibbs,  6  Cox  C.  C. 
455 ;  post,  §  300. 

3  Rex  V.  Paradice,  2  East  P.  C.  565,  M.  762;  Rex  v.  Lavauder,  2  Ea.st 
P.  C.  566  ;  Reg.  v.  Heath,  2  Moo.  C.  C.  33 ;  Reg.  v.  Perry,  1  Den.  C.  C 
69 ;  S.  V.  Schingen,  20  Wis.  74.  Compare  Mobley  v.  S.,  114  Ga.  544,  40 
S.  E.  728. 

The  rule  seems  to  have  been  formerly  somewhat  unsettled  upon  this 
point,  some  of  the  cases  making  the  question  turn  on  the  actual  control 
of  the  goods  independently  of  the  relation  of  master  and  servant.  The 
statute  21  H.  VIII,  ch.  7,  which  provided  that  where  goods  were  delivered 
by  a  master  to  his  servant  to  keep,  any  embezzlement  thereof  by  the  ser- 
vant was  larceny,  was  said  to  be  simply  declaratory  of  the  common  law, 
Rex  V.  Wilkins,  1  Leach,  4th  ed.  520.  See  also  Note,  Y.  B.  3  H.  VIII. 
12,  pi.  9,  M.  761 ;  Note,  Dyer  5  a;  Rex  v.  Watson,  2  East  P.  C  562. 

4  S.  V.  Fann,  65  N.  C.  317. 

5  Reg.  V.  Masters,  1  Den.  C.  C.  332,  C.  310,  K.  319,  M.  689  ;  Rex  v. 
Bazeley,  Leach,  4th  ed.  835,  K.  305;  Rex  v.  SuUens,  1  Moo.  C.  C.  129, 

18 


274  CRIMINAL  LAW.  [Sect.  284. 

fellow  servant,  the  latter  having  possession  and  not  transfer- 
ring tlie  goods  to  the  former  as  the  "  ultimate  destination  " 
thereof.^  But  if  one  servant  receives  goods  from  another  ser- 
vant having  custody,  only  custody  passes ;  the  goods  are  still 
in  the  master's  possession,  and  the  servant  may  steal  them.^ 

Still  further,  if  the  servant  who  has  taken  possession  of  the 
goods  puts  them  in  the  place  appropriated  for  their  reception 
hy  the  master,  the  latter  comes  at  once  into  possession,  and 
the  servant  taking  the  goods  thereafter  is  guilty  of  larceny. 
Such  is  the  case  where  money  is  put  by  a  clerk  into  the  till, 
or  documents  into  the  file  provided  for  them  ;3  and  so  where 
a  servant,  sent  with  a  cart  to  get  goods  of  the  master,  has  put 
them  in  the  cart.^  But  where  the  goods  are  put  into  the 
master's  receptacle,  not  in  the  course  of  employment,  but 
merely  as  a  place  of  temporary  concealment  until  they  can 
finally  be  taken  away,  the  possession  is  still  in  the  servant, 
and  the  taking  is  not  larceny.^  So  where  a  servant  who  has 
received  money  for  his  master,  deposits  it  in  his  own  room  in 
his  master's  house,  and  later  takes  it  away,  this  is  not  larceny.^ 

§  284.   Taking.     Bailee The  appropriation  by  a  carrier, 

however,  or  other  bailee,  of  property  of  wliich  he  has  posses- 
sion, and  in  which  he  has  therefore  a  quasi  property,  is  em- 
bezzlement, and  not  larceny.'''  And  it  is  immaterial  whether 
the  possession  has  been  given  by  the  owner  or  simply  taken 
without  objection  by  him  and  in  good  faith.     Unless  at  the 

K.  320,  M.  688;  Rex  v.  Hawtin,  7  C.  &  P.  281;  C.  v.  King,  9  Cush. 
(Mass.)  284. 

^  Reg.  V.  Masters,  ante.  Compare  Reg.  r.  Watts,  2  Den.  C.  C.  14,  C. 
312. 

2  Rex  V.  Murray,  1  Moo.  C.  C.  276,  C.  310,  K.  318. 

^  Reg.  V.  Watts,  ante. 

4  Reg.  V.  Reed,  6  Cox  C.  C.  284,  Dears.  C.  C.  257,  C.  232,  M.  692;  Reg. 
V.  Hayward,  1  C.  &  K.  518,  K.  321 ;  Reg.  v.  Norval,  1  Cox  C.  C.  95;  Rex  v. 
Mallison,  86  L.  T.  600. 

5  Rex  V.  Bull,  2  East  P.  C.  572,  M.  686;  C.  v.  Ryan,  155  Mass. 
523,  30  N.  E.  364. 

«  Rex  r.  Dingley,  Show.  53,  M.  684. 

'  Rex  V.  Raven,  Kel.  24  ;  Rex  v.  Banks,  R.  &  R.  441 ;  Reg.  r.  Tliristle, 
3  Cox  C.  C.  573,  C.  291  ;  P.  v.  Dalton,  15  Wend.  (N.  Y.)  581. 


Sect.  284.]  LARCENY.  275 

moment  of  taking  the  felonious  intent  exists  there  can  be  no 
larceny. 1  Thus  where  A  in  good  faith,  in  rescuing  goods  from 
a  fire,  took  pos.session  of  them  without  objection  by  the  owner, 
a  subsequent  keeping  of  them  animo  furandi  was  held  not 
larceny .2  So  where  A  made  a  conveyance  of  certain  goods  to 
trustees  but  they  were  not  removed,  a  felonious  conversion  of 
them  by  him  was  no  larceny,  since  they  had  throughout  re- 
mained in  his  ])ossession.^  The  possession  of  a  servant  is 
different  from  that  of  a  bailee.  That  of  the  former  is  mere 
custody,  while  that  of  the  latter  is  a  real  possession.  Thus, 
as  has  been  seen,  money  in  the  till  is  in  the  possession  of  the 
master,  but  in  the  custody  of  the  clerk.  But  where  property 
is  delivered  to  another,  who  is  not  the  servant  of  the  person 
so  delivering,  to  be  kept,  the  possession  is  in  the  employee  as 
a  trustee,  and  if  he  fraudulently  converts  it,  it  is  embezzle- 
ment, and  not  larceny.'* 

But  it  has  been  held  that,  if  the  bailee  do  any  act  which 
violates  the  trust,  as  where  a  carrier  breaks  open  a  package 
delivered  to  him  for  transportation,  and  abstracts  a  part  of 
its  contents,  he  thereby  terminates  the  bailment,  and  the  act 
is  larceny.^ 

This  is  on  the  principle  that  by  the  breaking  of  bulk  and 
consequent  termination  of  the  bailment  the  property  passes 
into  the  constructive  possession  of  the  original  bailor  and  the 
then  misdealing  with  it  by  the  carrier  amounts  to  a  new  and 

1  Rex  V.  Holloway,  5  C.  &  P.  524,  :\I.  7Q7. 

2  Leigh's  Case,  2  East  P.  C.  694,  M.  731.  See  Reg.  v.  Reeves,  5  Jur. 
N.  S.  716,  M.  708;  Noyes  v.  S.,  65  Ga.  754.  Compare  Hams  v.  S.  (Tex.), 
65  S.  W.  21. 

3  Reg.  V.  Pratt,  6  Cox  C.  C.  373,  C.  293. 

4  Rex  V.  Raven,  Kel.  24;  Rex  v.  Meeres,  1  Show.  50,  M.  730;  Rex  v. 
Banks,  R.  &  R.  441 ;  Reg.  v.  Saward,  5  Cox  C.  C.  295,  M.  771 ;  Still- 
well  V.  S.,  155  Ind.  552,  58  N.  E.  709;  Ennis  v.  S.,  3  Greene  (Ta.),  67; 
P.  V.  Taugher,  102  Mich.  598,  61  N.  W.  66  ;  Abrams  v.  P.,  6  Hun  (N.  Y.), 
491,  M.  733;  S.  v.  Fann,  65  N.  C.  317;  Mangum  c.  S.,  38  Tex.  Cr.  R. 
231,  42  S.  W.  291. 

5  Rex  V.  Brazier,  Ru.ss.  &  Ry.  337,  C.  300,  M.  941  ;  S.  v.  Fairclough, 
29  Conn.  47  ;  C.  v.  Brown,  4  Mass.  580  ;  Xichols  v.  P.,  17  N.  1".  114. 
See  also  C.  v.  James,  1  Pick.  (Mass.)  375,  C.  304;  and  a  valuable  note 
of  Mr.  Heard  to  the  same  case,  2  Bennett  &  Heard  Lead.  Cr.  Cas.  139. 


276  CRIMINAL   LAW.  [Sect.  284. 

larcenous  taking.'  But  where,  instead  of  breaking  bulk,  the 
carrier  disposes  of  the  entire  object  bailed  to  him,  then  the 
very  act  that  violates  the  terms  of  his  bailment  passes 
the  possession  to  a  third  person  ;  so  that  at  no  time  is  there 
a  felonious  taking  from  even  the  constructive  possession  of 
the  owner,  and  there  is  consequently  no  larceny.'-^  The  rule 
is  technical  and  has  been  doubted  in  principle.  It  being, 
however,  well  established,  it  follows  that  what  amounts  to 
a  breaking  of  bulk  must  be  distinguished  with  some  care. 
Opening  a  letter  or  bundle  and  i-emoving  any  of  the  contents 
is  clearly  such  ;  ^  so  where  the  property  is  delivered  in  bulk, 
as  wheat.* 

Where  the  bailment  consists  of  a  number  of  separate  units 
the  rule  has  been  said  to  be  that  if,  although  the  bailment  is 
thus  capable  of  being  resolved  into  its  integers,  it  was  in  fact 
intended  to  be  delivered  and  treated  as  a  single  mass  of  indis- 
tinguishable units  a  felonious  conversion  of  any  single  unit 
will  be  larceny  as  amounting  to  a  breaking  of  bulk.  Thus  a 
taking  from  a  cargo  of  pig  iron  or  staves  of  some  of  the  pigs 
or  staves  was  held  larceny.^  But  where  so  many  sheep  are 
delivered,  or  so  many  bundles  of  hay,  the  taking  of  a  single 
sheep ^  or  bundle''  is  not  a  breaking  of  the  mass  but  a  con- 
version of  one  entire  thing  and  hence  no  larceny.  In  other 
cases  it  has  been  held  that  though  the  bailment  be  of  separate 
units  a  wrongful  opening  of  the  enveloping  body  is  a  sufficient 
breaking  of  bulk  to  make  a  taking  larceny.^ 

^  The  view  on  which  the  earliest  carrier's  case  seems  to  have  been 
based,  so  far  as  it  bears  on  this  point  (compare  p.  262,  n.  4)  was  that  the 
carrier  acquired  no  possession  of  the  contents  of  the  parcel  by  the  bail- 
ment but  only  of  the  wrapping:  Carrier's  Case,  Y.  B.  13  Ed.  IV.  9, 
pi.  5,  C.  296,  K.  223,  M.  73i ;  see  also  Robinson  v.  S.,  1  Coldw.  (Tenn.)  120. 

2  Rex  V.  Fletcher,  4  C.  &  P.  54.5;  Reg.  v.  Cornish,  1  Dears.  425. 

3  Rex  V.  Jones,  7  C  &P.  151  ;  Reg.  v.  Jenkins,  9  C.  &  P.  38  ;  Reg.  v. 
Colhoun,  2  Crawf.  &  Dix.  57 ;  S.  v.  Fairclough,  29  Conn.  47;  Cheadle  v. 
Buell,  6  O.  67. 

*  C.  V.  James,  ante. 

6  Rex  V.  Howell,  7  C.  &  P.  325;  Nichols  v.  P.,  a7ite. 

«  Rex  V.  Reilly,  Jebb.  51. 

'  Rex  V.  Pratley,  5  C.  &  P.  533. 

^  Rex  V.  Madox,  R.  &  R.  92,  C.  301,  M.  73S  ;  Rex  v.  Brazier,  ante  ;  Reg. 


Sect.  285.]  LARCENY.  277 

That  the  carrier  was  not  a  common  carrier  or  was  acting 
gratuitously  does  not  affect  his  liability. ^ 

§  285.  Taking.  Temporary  Delivery  upon  Conditions.  —  If, 
however,  the  property  be  delivered  merely  for  a  temporary 
purpose,  without  intention  to  part  with  it  or  the  possession 
except  upon  certain  implied  conditions,  as  where  a  trader 
hands  a  hat  over  his  counter  to  a  customer  for  the  purpose  of 
examination,  and  the  customer  walks  off  with  it,  or  a  cus- 
tomer hands  to  a  trader  a  bill  out  of  which  to  take  his  pay  for 
goods  bought,  and  to  return  the  change,  and  the  trader  re- 
fuses the  change,  it  is  in  each  case  larceny.'^  The  possession 
is  in  each  case  fraudulently  obtained,  which  is  equivalent  to  a 
taking  without  the  consent  of  the  owner,  in  the  view  of  the 
law.  If  the  possession  be  fraudulently  obtained  with  intent 
on  the  part  of  the  person  obtaining  it,  at  the  time  he  receives 
it,  to  convert  it  to  his  own  use,  and  the  person  parting  with  it 
intends  to  part  with  his  possession  merely,  and  not  with  his 
title  to  the  property,  the  offence  is  larceny.^ 

Perhaps  it  might  justly  be  said  that  in  such  cases  the  pos- 
session is  not  parted  with,  the  property  being  in  such  prox- 
imity to  the  owner  that  he  still  has  dominion  and  control 
over  it.^  This  would  seem  to  be  the  better  view,  both  as  a 
matter  of  principle  and  on  the  facts.  So  long  as  the  property 
remains  under  the  control  of  the  owner  and  he  intends  to  let 
another  person  take  possession  only  after  complying  with 
certain  conditions,  a  taking  of  possession  otherwise  is  ob- 
viously invito  domino.  The  mere  fact  that  the  owner  permits 
manual  custody  to  be  taken  while  he  still  keeps  the  object  in 
such  close  proximity  that  it  is  still  under  his  control,  and 

V.  Poyser,  2  Den.  C.  C.  233,  C.  308.     C.  v.  Brown,  4  Mass.  580,  seems 
irreconcilable  with  either  of  the  above  rules. 

^  Reg.  0.  Jenkins,  ante ;  Rex  v.  Fletcher,  ante ;  S.  v,  Fairclough,  ante. 

2  Reg.  V.  Thompson,  9  Cox  C.  C.  244.  See  S.  v.  Hall,  76  la.  85, 
40  N.  W.  107  ;  C.  v.  O'.Maliey,  97  Mass.  584 ;  P.  v.  Call,  1  Denio  (N.  Y.), 
120,  M.  767. 

3  Rex  V.  Robson,  Russ.  &  Ry.  413  ;  Farrell  v.  P.,  10  111.  506  ;  C.  v. 
Barry,  124  Mass.  325;  Loomis  r.  P.,  67  X.  Y.  822;  Hildebrand  r.  P., 
56  N.  Y.  394 ;  Lewer  v.  C,  15  S.  &  R.  (Pa.)  93. 

*  Hildebrand  v.  P.,  ante;  2  East  P.  C.  683. 


278  CRIMINAL   LAW.  [Sect.  285a. 

hence  in  bis  possession,  cannot  affect  the  case.  Thus  where 
a  silk  manufacturer  delivers  raw  silk  to  workmen  who  work 
under  his  eye ;  ^  so  where  he  allows  the  defendant  to  take 
goods  a  few  feet  to  examine  them,^  or  money  to  count  it,^  or 
a  note  to  endorse  a  payment  thereon.*  In  all  such  cases  the 
defendant  having  acquired  only  custody,  if  he  takes  possession 
does  so  invito  domino,  and  if  there  is  a  felonious  intent, 
larcenously.^  Thus  where  defendant  acted  as  attorney  for  A 
in  buying  certain  land.  He  bought  it  for  $125,  but  informed 
A  that  the  price  was  $325,  of  which  SIO  was  to  go  to  de- 
fendant. The  parties  having  met,  A  laid  the  money  on  a 
table  ;  defendant  took  it  into  the  next  room,  paid  the  seller 
$125,  and  retained  the  balance.  This  was  held  larceny ;  and 
it  was  said  that  A  never  gave  up  the  possession  to  defendant, 
even  though  the  latter  had  a  right  to  select  $10  and  keep  it.^ 

Where  the  transaction  is  intended  by  the  owner  of  the 
property  stolen  to  be  a  single  one,  as  where  A  puts  down 
bills  expecting  to  get  gold,  the  defendant  does  not  acquire 
even  custody,  and  a  taking  of  possession  without  complying 
with  the  terms  proposed  is  larceny.'^  So  where  the  owner  of 
goods  puts  them  at  defendant's  door  but  intends  to  keep 
the  entire  control  of  them  until  he  receives  his  money .^ 

§  285a.  Bailment  for  Special  Purpose.  —  If,  however,  the 
possession  is  voluntarily  transferred  even  though  for  a  speci- 
fied purpose,  a  conversion  by  the  bailee  is  not  larceny.  Thus 
where  A  gives  material  to  B  to  work  on  in  his  own  home  and 
return,  and  B  then  feloniously  converts.^     So  where  A  en- 

1  Anon.,  Kel.  35,  ]\I.  761. 

2  Rex  V.  Chissers,  T.  Ray.  275,  K.  217. 
8  C.  V.  O'Malley,  ante, 

*  P.  I'.  Call,  ante. 

5  See  also  Reg.  r.  Johnson,  5  Cox  C  C.  372,  C.  284 ;  Reg.  v.  Rod- 
way,  9  C.  &  P.  784  ;  S.  r.  Walker,  65  Kan.  92,  68  P.  1095. 

6  C.  V.  Lannan,  153  Mass.  287,  26  N.  E.  858. 

7  S.  ('.  Huber,  57  hid.  311  ;  Grunson  c.  S.,  89  Ind.  533  ;  S.  v.  Anderson, 
25  Minn.  66 ;  S.  v.  Watson,  41  N.  H.  533. 

8  Reg.  V.  Slowley,  12  Cox  C  C.  269. 

9  Reg.  V.  Saward,  5  Cox  C.  C.  295,  M.  771  ;  Abranis  v.  P.,  6  Ilua 
(N.  Y.)%91,  M.  733. 


Sect.  286.]  LARCENY.  279 

trusts  a  sovereign  to  B  to  take  away  and  get  changed ;  the 
transaction  not  being  intended  to  take  place  under  A's 
control,  B  has  possession  of  the  coin  and  a  later  conversion 
is  not  larceny.^  Some  cases,  however,  apparently  lay  down 
the  rule  that  where  the  property  is  delivered  for  a  special  pur- 
pose possession  does  not  pass  even  though  the  parties  do  not 
occupy  the  relation  of  master  and  servant  and  the  property  is 
not  so  under  the  direct  control  of  the  owner  as  to  be  in  his 
possession.  Thus  where  A  delivered  to  B,  a  hack  driver,  a 
bundle  to  take  home  for  him,  a  felonious  taking  by  B  was 
held  larceny/'^  So  where  a  bank  delivered  to  a  broker  a 
check  on  which  he  was  to  endeavor  to  raise  money,  a  felonious 
conversion  of  the  check  was  held  larceny  on  the  ground  that 
the  broker  had  only  custody,  although  he  was  not  a  servant. 
This  doctrine  can  be  sustained  only  by  an  extension  of  the 
technical  rule  of  possession  in  the  case  of  master  and  serv- 
ant.3  ^\^Q  cases  actually  resting  on  this  ground  are  too  few 
to  make  it  clear  just  what  is  meant  by  a  "  special  purpose." 
Many  cases  apparently  resting  on  this  ground  are  really  sus- 
tainable on  other  well-established  principles,  as  larceny  by 
trick  ^  or  delivery  to  a  servant,  general  ^  or  special.^ 

§  286.  Taking  by  Owner.  —  A  general  owner  may  be  guilty 
of  larceny  of  his  own  goods,  if  at  the  time  of  taking  he  has  no 
right  to  their  possession,  as  where  one  whose  property  has 
been  attached  takes  it  away  with  intent  to  deprive  the  attach- 
ing creditor  of  his  security,'^  or  a  part  owner  of  property  in 

1  Reg.  V.  Thomas,  9  C.  &  P.  741,  M.  763  ;  Reg.  v.  Reynolds,  2  Cox 
C.  C.  170;  and  see  in  general  §284,  and  cases. 

2  Holbrook  V.  S.,  107  Ala.  154,  18  So.  109. 

3  P.  V.  Abbott,  53  Cal.  284.  See  also  Reg.  v.  Smith,  1  C.  &  K.  423; 
Murphy  v.  P.,  104  111.  528;  Justices  v.  P.,  90  N.  Y.  12;  Richards  v.  C, 
13  Grat.  (Va.)  803. 

»  Welsh  V.  P.,  17  111.  339 ;  Smith  v.  P.,  53  X.  Y.  Ill  ;  and  see  §  277a, 
and  cases. 

5  Reg.  V.  Low,  10  Cox  C  C.  168;  Reg.  v.  Beaman,  C  &  M.  595; 
C.  V.  Hutchinson,  2  Pars.  Eq.  Ca.  (Pa.)  384;  U.  S.  v.  Strong,  2  Cranch 
C.  C  251,  Fed.  Cas.  Xo.  16,411. 

6  Reg.  V.  Goode,  1  C.  &  M.  582,  M.  766 ;  and  see  §  283,  and  cases. 

^  C.  V.  Greene,  111  Mass.  392.     See  also  P.  v.  Thompson,  34  Cal.  671; 


280  CRIMINAL  LAW.  [Sect.  287. 

the  possession  of  another  takes  it  feloniously .^  So  in  any  case 
where  the  possessor  of  the  property  has  a  right  in  it  which  he 
can  enforce  against  the  owner  and  the  taking  is  with  the  in- 
tent to  deprive  him  of  that  right.  Thus  where  a  pledgor  takes 
from  his  pledgee,^  or  a  tenant  takes  his  property  from  the 
landlord  after  the  latter  has  acquired  a  special  property  therein 
by  levy.^  And  so  where  the  bailees  are  under  a  liability  to 
third  persons.*  So  where  they  were  liable  for  duties  upon  goods 
unless  exported  from  the  country .^  So  if  they  are  taken  by 
the  owner  with  the  intent  to  charge  the  bailee  therefor.^ 

§  287.  Taking  by  Wife.  — The  wife  of  an  owner  of  property 
cannot  commit  larceny  by  taking  it  from  her  husband's  pos- 
session,' even  if  she  is  about  to  elope  with  an  adulterer,^ 
though  the  latter  might  be  guilty ;  for  a  wife  cannot  have  pos- 
session of  property  apart  from  her  husband.^ 

For  the  same  reason,  a  third  person,  taking  property  of  the 
husband  jointly  with  the  wife  or  with  her  consent,  is  not  guilty 
of  larceny.!*  If,  however,  the  third  person  takes  possession  of 
the  property  of  the  husband,  as  aforesaid,  being  at  the  time  an 

Palmer  v.  P.,  10  Wend.  (N.  Y.)  165.  But  if  the  taking  is  for  the  pur- 
pose, not  of  defeating  the  levy,  but  to  prevent  other  creditors  from  at- 
taching, or  is  under  a  belief  that  the  owner  has  the  right  to  the  goods  as 
against  the  officer,  the  taking  is  not  felonious:  C.  v.  Greene,  ante ; 
Whiteside  v.  Lowney,  171  Mass.  431,  50  N.  E.  931 ;  Clarke  v.  S.,41  Neb. 
370,  59  X.  W.  785 ;  Adams  v.  S.,  45  N.  J.  L.  448. 

1  Rex  V.  Wilkinson,  Russ.  &  Ry.  470,  C.  273,  K.  253;  Reg.  v.  Webster, 
9  Cox  C.  C.  13. 

2  Henry  v.  S.,  110  Ga.  750,  36  S.  E.  55,  M.  665;  Bruley  v.  Rose,  57  la. 
651,  11  N.  W.  629. 

3  C.  V.  Shertzer,  3  Lack.  Leg.  N.  (Pa.)  8;  accord,  Tumalty  v.  Parker, 
100  111.  App.  382;  P.  v.  Long,  50  Mich.  249,  15  N.  W.   105. 

4  Rex  V.  Bramley,  R.  &  R.  478,  C.  276,  M.  670. 
^  Rex  V.  Wilkinson,  ante. 

«  P.  V.  Thompson,  ante ;  S.  v.  Fitzpatrick,  8  Houst.  (Del.)  385,  32  Atl. 
1072;  Palmer  v.  P.,  ante. 

7  Thomas  v.  Thomas,  51  111.  162;  S.  r.  Banks,  48  Ind.  197. 

8  Reg.  V.  Kenny,  2  Q.  B.  D.  307,  13  Cox  C.  C  397,  C  359,  M.  669; 
Reg.  i\  Glassie,  7  Cox  C.  C  1. 

9  Rex  V.  Willis,  1  Moo.  C.  C.  375,  C.  360,  M.  672. 

10  Harrison's  Case,  2  East  P.  C.  559,  K.  274;  Lamphier  v.  S.,  70  Ind. 
317. 


Sect.  288.]  LARCENY.  281 

adulterer  or  in  contemplation  of  adultery  he  is  guilty  of  lar- 
ceny.^ This  is  sometimes  j)ut  on  the  ground  that  under  the 
circumstances  the  adulterer  must  know  the  wife  has  not  the 
husband's  consent  to  any  dealing  with  the  .property.  This 
reason,  however,  hardly  seems  satisfactory,  and  the  true  ex- 
planation of  the  doctrine  is  probably  historical.  If  the  adul- 
terer does  not  in  fact  take  possession  of  the  goods,  the  fact 
that  they  are  in  his  room  does  not  make  him  guilty .^ 

Under  the  married  woman's  acts  it  would  seem  that  the 
husband  may  be  guilty  of  larceny  of  his  wife's  property.^ 

§  288.  Intent  to  Steal.  Claim  of  Right. — The  taking  must 
also  be  felonious ;  that  is,  with  intent  to  deprive  the  owner  of  his 
property,  and  without  color  of  right  or  excuse  for  the  taking.* 
Therefore  a  taking  under  a  claim  of  right,  if  the  claim  be 
made  in  good  faith,  however  unfounded  it  may  be,  is  not  larce- 
nous.°  And  it  is  immaterial  whether  the  claim  is  on  behalf 
of  the  defendant  himself  or  some  third  person  for  whom  he  is 
acting.^  But  a  custom  to  take  fruit,  as  from  boxes  of  oranges 
on  board  a  vessel  in  transitu^  is  neither  good  in  itself,  nor  as  a 
foundation  for  a  claim  of  right.'     And  in  general,  the  claim 

1  Rex  r.  Clark,  1  Moo.  C.  C.  376,  n. ;  Reg.  v.  Tollett,  C.  &  M.  112; 
Reg.  r.  Featherstone,  6  Cox  C.  C  376,  K.  274  ;  Reg.  v.  Glassie,  ante  ;  Reg. 
V.  Berry,  8  Cox  C.  C.  117;  Reg.  v.  Harrison,  12  Cox  C.  C.  19;  P.  v. 
Schuyler,  6  Cow.  (N.  Y.)  572 ;  contra,  as  to  the  wife's  wearing  apparel, 
Reg.  V.  Fitch,  D.  &  B.  C.  C.  187  (semhle). 

2  Reg.  V.  Rosenberg,  1  C.  &  K.  233. 

3  Hunt  1-.  S.  (Ark.),  79  S.  W.  769;  Beasley  v.  S.,  138  Ind.  552,  38 
N.  E.  35.     Compare  Overton  v.  S.,  43  Tex.  616." 

4  Reg.  V.  Holloway,  2  C.  &  K.  942,  3  Cox  C.  C.  241,  1  Den.  C.  C.  370, 
C.  263,  K.  285;  S.  v.  South,  4  Dutch.  (X.  J.)  28;  S.  v.  Ledford,  67  N.  C. 
60;  Johnson  v.  S.,  36  Tex.  375. 

6  Reg.  V.  Halford,  11  Cox  C.  C.  88;  Blair  v.  S.  (Ark.),  71  S.  W. 
482;  P.  V.  Carabin,  14  Cal.  438;  S.  v.  Main,  75  Conn.  55,  52  Atl.  257;  S. 
V.  Fallen,  3  Penne.  (Del  )  184,  50  Atl.  538;  Dean  v.  S.,  41  Fla.  291,  26  So. 
638;  Hall  v.  S.,  34  Ga.  208;  .James  v.  S.,  114  Ga.  9G,  39  S.  E.  946  ;  S.  r. 
Homes,  17  Mo.  379;  Severance  v.  Carr,  43  N.  H.  65;  S.  v.  Fisher,  70 
N.  C.  78 ;  and  see  note  in  57  Am.  Dec.  271. 

«  Rex  V.  Knight,  2  East  P.  C.  510,  C.  484;  P.  v.  Ploagland,  138  Cal. 
338,  71  P.  3.59;  S.  v.  Waltz,  52  la.  227;  Chambers  i'.  S.,  62  Miss.  108; 
Tyler  v.  S.  (Tex.),  70  S.  W.  750.  Compare  Reg.  v.  Gardner,  9  Cox 
C.  C.  253,  C.  365. 

■^  C.  V.  Doaue,  1  Cush.  (Mass.)  5. 


282  CRIMINAL   LAW.  [Sect.  289. 

must  be  bona  fide.  Thus  where  the  defendant  secreted  A's 
horse  to  extort  a  further  payment  for  some  land  purchased  by 
A,  the  jury  having  found  that  the  defendant  knew  he  was  not 
entitled  to  the  money,  he  was  held  guilty  of  larceny  of  the 

horse.  ^ 

Taking  property  with  the  intent  to  compel  a  payment  of  a 
debt  would  seem  not  to  be  larceny  on  the  principles  above 
stated,  there  being  no  intent  to  steal.^  It  has  been  said,  how- 
ever, that  since  the  law  does  not  allow  a  person  to  collect  his 
debt  in  that  way,  the  taking  is  larcenous.^  In  accordance  with 
the  former  and  apparently  better  view,  it  would  seem  that 
where  A  compels  B  to  sell  him  property,  although  A  may 
under  some  circumstances  be  guilty  of  an  assault  or  civilly 
liable,  there  is  no  such  intent  to  steal  as  will  make  the  act 
larceny.*  The  question  of  fact  as  to  the  intent  of  course 
always  remains  open  and  if  the  price  left  is  less  than  the  value 
of  the  goods  taken  a  felonious  intent  may  be  found.^ 

§289.  Permanent  Taking.  —  The  intent  to  steal  does  not 
exist  unless  the  object  of  the  wrong  doer  is  permanently  to  de- 
prive the  possessor  of  property  of  his  present  interest  in  it.  If 
the  purpose  is  only  a  temporary  use,  the  owner's  rights  in  the 
chattel  not  being  permanently  infringed,  the  purpose  is  not 
larcenous.^ 

The  distinction  is  clearly  brought  out  in  a  series  of  English 
cases.     In  the  first,  a  workman  in  a  tannery  was  paid  accord- 

1  Reg.  V.  O'Donnell,  7  Cox  C.  C.  337,  M.  815 ;  accord,  Higginbotham 
V.  S.,  42  Fla.  573,  29  So.  410;  Currier  v.  S  ,  157  Ind.  114,  60  N.  E.  1023  ; 
S.  V.  Hunt,  45  la.  673  ;  S.  v.  Jone.s  19  N.  C.  544. 

'^  Reg.  V.  Hammings,  4  F.  &  F.  50;  Reg.  v.  Wade,  11  Cox  C.  C.  540, 
K.  283;  P.  V.  Vice,  21  Cal.  344;  P.  t:  Walbrun,  132  Mich.  24,  92  N.  W. 
494. 

8  Farrell  v.  P.,  16  111.  506;  C.  v.  Stebbins,  8  Gray  (Mass.),  492;  Butler 
r.  S.,  3  Tex.  App.  403. 

4  Fisherman's  Case,  2  East  P.  C.  661,  M.  807;  Anon.,  2  East  P.  C  662, 
M.  807  ;  Beckham  i'.  S.  (Tex.),  22  S.  W.  411 ;  Young  v.  S.,  37  Tex.  Cr.  R. 
457,  36  S.  W.  272. 

5  Compare  Mason  v.  S.,  32  Ark.  238;  Kirk  v.  Garrett,  84  Md.  383,  35 
Ail.  1089. 

6  Reg.  V.  Gurnsey,  1  F.  &  F.  394,  C.  350. 


Sect.  289]  LARCENY.  283 

ing  to  the  number  of  skins  he  dressed.  He  took  a  number  of 
dressed  skins  from  the  master's  storehouse  and  handed  them 
to  the  foreman,  in  order  to  secure  the  compensation  for  dress- 
ing them.  This  was  held  not  to  be  larceny  of  the  skins  ;  for 
the  workman  never  even  pretended  that  the  skins  Avere  not 
the  master's,  or  that  the  master  had  not  an  immediate  right 
to  the  possession.!  In  the  second  case,  a  workman  at  a  tallow 
chandler's  took  some  fat  from  the  storehouse  and  put  it  in  the 
scales,  pretending  that  it  had  been  brought  in  for  sale.  Here 
the  intention  was  to  deprive  the  master  of  all  his  right  in  the 
fat,  and  that  he  should  procure  a  new  right  only  by  purchase ; 
and  it  was  therefore  larceny .^ 

According  to  this  distinction,  taking  a  chattel  to  be  used  as 
a  means  of  escape  and  then  left,^  or  for  the  purpose  of  induc- 
ing the  owner  to  follow  it  *  or  to  refrain  from  leaving  the 
house,^  or  to  facilitate  the  commission  of  another  theft,  does 
not  constitute  larceny.^  Taking  property,  however,  with  a 
design  to  apply  it  on  a  note  due  to  the  taker  from  the  owner, 
is  depriving  the  owner  of  the  specific  property.'''  So  is  the 
taking  of  a  railway  ticket,  with  intent  to  use  it,  though  coupled 
with  the  intent  to  return  it  after  use.^  To  conceal  it  from  the 
owner  until  the  latter  shall  offer  a  reward  for  its  recovery,  or 
to  sell  it  at  a  reduced  price,  is  depriving  him  of  a  part.^     But 

1  Reg.  V.  Holloway,  3  Cox  C.  C.  241,  2  C.  &  K.  942,  C.  263,  K.  285  ; 
Rex  V.  Webb,  1  Moo.  431,  M.  811 ;  Reg.  v.  Poole,  7  Cox  C.  C.  373.  Com- 
pare Rex  V.  Richards,  1  C.  &  K.  532,  M.  813.  See,  contra,  Fort  v.  S.,  82 
Ala.  50,  2  So.  477. 

2  Reg.  V.  Hall,  3  C.  &  P.  409,  3  Cox  C.  C.  245,  C  282,  K.  280 ; 
accord,  Reg.  v.  Mannhig,  6  Cox  C.  C.  80,  C.  268. 

3  Rex  V.  Phillips,  2  East  P.  C.  662,  M.  808 ;  S.  v.  York,  5  Harr.  (Del.)  493. 
*  Rex  V.  Dickinson,  Russ.  &  Ry.  420. 

6  Cain  V.  S.,  21  Tex.  App.  662. 

6  Rex  V.  Crump,  1  C.  &  P.  658,  K.  284.  See  also  Rex  v.  Phillips, 
ante:  Re  Mutchler,  55  Kan.  164,  40  P.  283 ;  Mitciiell  v.  Terr.,  7  Okl.  527, 
54  P.  782;  Mahoney  v.  S.,  33  Tex.  Cr.  R.  388,  26  S.  W.  622;  Lucas  v.  S., 
33  Tex.  Cr.  R.  290,  26  S.  W.  213. 

T  C.  V.  Stebbins,  8  Gray  (Mass.),  492. 

8  Reg.  V.  Beecham,  5  Cox  C.  C  181,  C.  335. 

9  Reg.  v.  Peters,  1  C.  &  K.  245;  Reg.  v.  Spurgeon,  2  Cox  C.  C.  102; 
Reg.  V.  O'Donnell,  7  Cox  C.  C.  337,  M.  815  ;  C  v.  Mason,  105  Mass.  163; 


284  CRIMINAL  LAW.  [Sect.  290. 

simply  to  withhold  for  a  time  property  one  has  found,  in  the 
hope  of  a  reward,  is  not  larceny.^ 

Taking  goods  of  another  in  order  to  pawn  them  is  larceny, 
even  if  the  intention  is  ultimately  to  redeem  and  restore 
them.2  A  man  who  takes  an  execution  from  an  officer  who  is 
about  to  le\7  upon  his  goods,  and  keeps  it,  under  the  mistake 
that  he  can  thereby  prevent  the  levy,  hopes  to  reap  an  advan- 
tage ;  but  such  an  act  is  no  more  larceny  than  the  taking  a 
stick  out  of  a  man's  hand  with  which  to  beat  him.^ 

§  290.  Taking.  Concealment.  —  Although  the  taking  be 
open,  and  without  secrecy  or  concealment,  it  may  still  be 
theft ;  and  that  the  act  is  furtively  done  is  only  evidence  of 
the  criminal  intent.*  Yet  there  is  undoubtedly  in  the  popular, 
if  not  in  the  legal,  idea  of  theft,  — furtum,  —  an  element  of 
secrecy  in  the  taking.^  But  if  the  act  be  fraudulent,  and 
known  to  the  taker  to  be  without  right  or  against  right,  it  is 
immaterial  whether  the  taking  be  open  or  secret.  Nor  does  it 
seem  to  be  essential  that  the  taker  should  be  animated  by  any 
motive  of  mere  pecuniary  gain.*^  And  the  fraudulent  purpose, 
—  the  element  without  which  there  can  be  no  theft,  the  act,  in 
the  absence  of  fraud,  being  only  a  trespass,  —  must  exist  at 
the  time  of  the  taking.  The  taking  must  be  with  a  fraudulent 
intent.  The  taking  without  a  fraudulent  intent,  and  a  conver- 
sion afterwards  with  a  fraudulent  intent,  do  not,  in  general, 
constitute  larceny.' 

Berry  v.  S.,  31  O.  St.  219;  Dunn  v.  S.,  34  Tex.  Cr.  R.  257,  30  S.  W. 
227. 

1  Reg.  V.  Gardner,  9  Cox  C.  C.  253,  C  365;  Reg.  v.  York,  3  Cox  C.  C. 
181 ;  S.  V.  Arkle,  116  N.  C.  1017,  21  S.  E.  408  ;  Micheaux  v.  S.,  30  Tex. 
App.  «60,  18  S.  W.  550. 

2  Reg.  V.  Trebilcock,  7  Cox  C.  C.  408,  C.  339  ;  Reg.  v.  Phctbeon,9  C. 
&  P.  552,  C.  337 ;  Fields  v.  S.,  6  Coldw.  (Tenn.)  524;  Truslow  i'.  S.,  95 
Tenn.  189,  31  S.  W.  987 ;  contra,  but  semhle  overruled :  Rex.  v.  Wright, 
9  C.  &  P.  554,  n.,  M.  10. 

8  Reg.  V.  Bailey,  L.  R.  1  C  C.  347,  M.  824. 
4  S.  V.  Fenn,  41  Conn.  590. 
6  S.  r.  Ledford,  67  N.  C.  60. 
6  Reg.  r.  Jones,  1  Den.  C.  C.  188;  post,  §  291. 

'  Rex  i;.  Banks,  Russ.  &  Ry.  441,  C  364;  S.  v.  Shermer,  55  Mo.  83; 
Wilson  V.  P.,  39  N.  Y.  459. 


Sect.  290a.]  LARCENY.  285 

It  is  held  in  some  cases,  however,  that  while,  if  the  original 
taking  be  rightful,  a  subsequent  fraudulent  conversion  will 
not  make  it  larceny,  yet  if  the  original  taking  be  wrongful,  as 
by  a  trespass,  it  will.  Thus,  if  a  man  hires  a  horse  in  good 
faith  to  go  to  a  certain  place,  and  afterwards  fraudulently 
converts  him  to  his  own  use,  this  is  no  larceny.  If  he  takes 
the  horse  without  leave,  and  afterwards  fraudulently  converts 
him,  this  is  larceny.^  So  if,  under  color  of  hiring,  he  gets 
possession  with  intent  to  steal.^  And  it  has  even  been  held 
by  very  high  authority,  that  if  possession,  without  intent  to 
steal,  be  obtained  by  a  false  pretence  of  hiring  for  one  place, 
when  in  fact  the  party  intended  to  go  to  another  and  more 
distant  place,  and  the  property  be  subsequently  converted  with 
a  felonious  intent,  this  is  larceny .^  So  if,  after  a  hiring  and 
completion  of  the  journey  without  felonious  intent,  instead  of 
delivering  the  horse  to  the  owner,  the  hirer  converts  him  to 
his  own  use.*  This  case  proceeds  upon  the  ground  that  the 
bailment  is  terminated.  And  it  may  be  said,  generally,  that 
a  bailee  who  receives  or  gets  possession  with  intent  to  steal,  or 
fraudulently  converts  to  his  own  use  after  his  right  to  the 
possession  as  bailee  has  terminated,  is  guilty  of  larceny.  In 
neither  case  does  he  hold  possession  by  consent  of  the  owner.^ 

§  290«.  Continuing  Trespass.  —  These  cases,  where  the  orig- 
inal taking  of  possession,  though  wrongful,  was  not  felonious 
are  put  on  the  ground  of  "  continuing  trespass"  or  "continu- 
ing taking"  i.  e.,  that  where  the  possession  is  tortiously  ac- 
quired every  moment  of  detention  is  a  new  taking  from  the 
owner,  and  hence  at  the  moment  when  the  felonious  intent 
does  arise,  that,  with  the  then  new  constructive  taking,  fur- 
nishes all  the  elements  of  larceny.^      The  statement  of  the 

1  Reg.  V.  Riley,  6  Cox  C.  C.  88,  Dears.  C.  C.  149,  C.  279,  K.  289;  C. 
V.  White,  11  Cush.  (Mass.)  483,  U.  708. 

2  P.  V.  Smith,  23  Cal.  280 ;  S.  v.  Williams,  8.)  Mo.  229  ;  S.  v.  Gorman, 
2  Nott  &  McCord  (S.  C),  90.     See  also  S.  v.  Fenn,  41  Conn.  590. 

3  S.  V.  Coombs,  55  Me.  477. 

4  Reg.  V.  Ilaigh,  7  Cox  C.  C.  403. 

5  See  2  Bish.  Cr.  Law,  §§  834,  835.     See  also  ante,  §  284. 

6  Reg.  V.  Riley,  ante  ;  Weaver  v.  S.,  77  Ala.  26  ;  Dozier  v.  S.,  130  Ala. 
57,  30  So.  396;  S.  v.  Coombs,  ante ;  C.   ?;.  White,   ante;    Beatty  v    S.,   61 


286  CRIMINAL  LAW.  [Sect.  291. 

doctrine  shows  its  highly  artificial  character,  and  the  cases 
are  not  uniform. ^  Another  aspect  of  the  same  principle  is 
involved  in  the  question  of  jurisdiction  in  one  State  or  country 
over  larcenies  committed  in  another.^ 

§  291.  Taking  Lucri  Causa.  —  The  talking  need  not  be  for 
pecuniary  gain  or  advantage  of  the  thief,  if  it  is  with  design 
wholly  to  deprive  the  owner  of  his  property .^  Logically,  tak- 
ing to  one's  self  tlie  absolute  and  permanent  control  and 
disposition  of  the  property  of  another,  Avith  no  intention  of 
returniug  it  to  him,  is  an  addition  to  the  property  of  tlie  taker, 
and  in  that  sense  necessarily  a  gain  or  advantage,  without  ref- 
erence to  the  mode  of  control  or  subsequent  disposition.  The 
larceny  is  complete,  and  is  not  the  less  a  larceny  because  it  is 
committed  as  a  step  in  the  accomplishment  of  some  other  act, 
criminal  or  otherwise.  It  was  formerly  laid  down,  that  unless 
it  appears  that  it  would  be  of  some  sort  of  advantage,'^  as  to 
enable  the  offender  to  make  a  gift,  or  to  destroy  evidence 
which  might  be  used  against  him,^  the  offence  would  more 
properly  be  malicious  mischief.''  But  even  those  courts  which 
laid  down  the  rule  held  that  this  advantage  might  be  of  a  very 
trifling  character.  Thus,  it  was  held  in  England,"  that  where 
it  was  the  duty  of  a  servant  to  tal^e  such  beans  as  were  doled 
out  to  him  by  another  servant,  and  split  them  and  feed  them 

Miss.  18.  In  Reg.  v.  Riley  there  would  seein  to  have  been  no  taking  of 
possession  until  the  discovery  of  the  animal,  and  then  clearly  annuo  furandi. 
See  §  280. 

1  In  accord  with  what  seems  the  better  principle  see  :  S.  v.  Riggs,  8 
Ida.  G30,  70  P.  917  ;  Cady  v.  S.,  39  Tex.  Cr.  R.  236,  4.5  S.  W.  5G8;  com- 
pare Rex  V.  Holloway,  5  C.  &  P.  524,  K.  288.  M.  707;  Nightengale  v.  S., 
94  Ga.  9.5,  21  S.  E.  221. 

2  Ante,  §  80. 

8  Reg.  I'.  Jones,  2  C.  &  K.  236, 1  Den.  C.  C.  188,  C.  346,  M.  818;  P.  v. 
Juarez,  28  Cal.  380;  Hamilton  v.  S.,  35  Miss.  214. 

4  Reg.  V.  White,  9  C.  &  P.  344. 

5  Reg.  V.  Jones,  ante;  Reg.  v.  Wynn,  3  Cox  C.  C.  271,  1  Den.  C.  C. 
365,  C.  352;  Rex  v.  Cabbage,  Russ.  &  Ry.  292,  C.  344,  M.  809. 

6  Reg.  V.  Godfrey,  8  C.  &.  P.  503  ;  S.  v.  Hawkins,  8  Porter  (Ala.),  461 ; 
P.  V.  IMurphy,  47  Cal.  103. 

■^  Rex  V.  Morfit,  Russ.  &  Ry.  307,  C.  345;  Reg.  v.  Privett,  2  C.  &  K. 
114,  1  Den.  C.  C.  193,  C.  349,  M.  814. 


Sects.  292,  293.]  LARCENY.  287 

to  the  horses,  and  the  former  clandestinely  took  a  bushel  of 
the  beans  and  fed  them  to  the  horses  whole,  whereby  he  possi- 
bly injured  liis  employer's  horses,  and  saved  labor  to  himself, 
this  was  a  sufficient  taking  to  constitute  larceny.  This  was 
an  extreme  case  of  doubtful  law,  and  it  was  immediately 
changed  by  statute.^ 

But  by  the  better  view  there  is  no  need  of  the  motive  of 
gain  in  order  to  convict  of  larceny.  The  permanent  injury 
to  the  owner  is  enough.^ 

§  292.  Ownership.  —  A  general  or  special  ownership  by  an- 
other is  sufficient  to  sustain  the  allegation  that  the  property  is 
his.^  Even  a  thief  has  sufficient  ownership  to  support  the 
allegation  as  against  another  thief.^ 

§  293.  Larcenies  from  the  person,  from  a  vessel,  and,  under 
special  circumstances,  from  a  building,  are  but  aggravated 
forms  of  larceny,  of  statutory  growth,  and  by  statutes  gener- 
ally similar,  but  in  particulars  different,  are  specially  defined, 
and  made  specially  punishal)le,  and  are,  so  far  as  the  larceny 
is  concerned,  to  be  tried  by  the  tests  heretofore  stated.  They 
are  sometimes  called  compound  larcenies,  as  being  made  up  of 
two  or  more  distinct  crimes,  —  as  in  case  of  larceny  from  the 
person,  which,  technically  at  least,  includes  an  assault  upon 
the  person,  —  and  are  said  to,  be  agjravated,  because  it  indi- 

1  26  &  27  Vict.  c.  103,  §  1. 

2  Reg.  V.  Guernsey,  1  F.  &  F.  394,  C.  3.50;  Williams  v.  S.,  52  Ala.  411; 
P.  V.  Juarez,  28  Cal.  380;  S.  v.  Wellman,  34  Minn.  221,  25  N.  W.  395; 
Hamilton  v.  S.,  35  Miss.  214  ;  Warden  v.  S.,  60  Miss.  638;  S.  v.  Ryan, 
12  Nev.401;  S.  v.  Slingerland,  19  Nev.  135;  S.  v.  Davis,  38  N.J.  L.  176; 
S.  V.  Brown,  3  Strobh.  (S.  C.)  508.  Compare  S.  v-  Palmer,  4  Penne.  (Del.) 
126,  53  Atl.  259.  See,  contra,  Pence  v.  S.,  110  Ind.  95,  10  N.  E.  919;  P. 
V.  Woodward,  31  Hun  (N.  Y.),  57.  An  excellent  discussion  of  the  question 
may  be  found  in  the  dissenting  opinion  of  Learned,  P.  J.,  in  the  last  case. 

»  Reg.  V.  Bird,  9  C.  &  P.  44;  Kennedy  v.  S.,  31  Fla.  428,  12  So.  8.58; 
Quinn  v.  P.,  123  111.  333,  15  N.  E.  46  ;'  S.  v.  Mullen,  30  la.  203;  S.  v. 
Furlong,  19  Me.  225  ;  C.  v.  O'Hara,  10  Gray  (Mass.),  469  ;  S.  v.  Gorham, 
55  N.  H.  152;  P.  v.  Bennett,  37  X.  Y.  117  :  S.  v.  Allen,  103  N.  C.  433, 
9  S.  E.  626;  S.  v.  Williams,  2  Strobh.  (S.  C.)  474;  Owen  v.  S.,  6  Humph. 
(Tenn.)  330;  U.  S.  v.  Foye,  1  Curtis  C.  C.  364,  Fed.  Cas.  No.  15,1.57. 

4  C.  V.  Finn,  108  Mass.  466  ;  Ward  v.  P.,  3  Hill  (N.  Y.),  395,  6  Hill, 
144,  M.  663. 


288  CRIMINAL  LAW.  [Sects.  294,  295. 

catcs  a  higher  degree  of  depravity  to  take  property  from 
under  the  protection  of  the  person  or  of  the  building,  than 
to  take  the  same  property  when  it  is  found  not  under  such 
protection.  There  is,  however,  the  vioLntion  of  the  security 
of  the  person  and  of  the  building,  which  enhances,  in  the 
estimation  of  the  law,  the  gravity  of  the  offence.  But  these 
subdivisions  of  the  law  of  larceny  have  become  so  general, 
that  a  few  observations  will  be  of  use. 

§  294.  Larceny  from  the  Person,  though  it  can  be  perpetrated 
only  by  force,  is  nevertheless  an  offence  requiring  no  other 
than  the  mere  force  of  taking  the  thing  stolen,  and  is  distin- 
guishable from  robbery,  in  that  the  latter  is  an  offence  com- 
pounded of  two  distinct  offences,  —  assault  and  larceny,  — 
the  assault  being,  as  it  were,  preparatory  to  and  in  aid  of  the 
larceny. 1  If,  for  instance,  a  thief,  —  for  instance,  a  pick- 
pocket, —  in  passing  another  person  snatches  a  pocket-book 
from  his  hand  or  from  his  pocket,  this  is  larceny  from  the 
person ;  while  if  the  thief  knocks  the  person  down  or  seizes 
him,  and  then  takes  the  pocket-book  from  his  possession,  this 
is  robbery .2  Technically,  no  doubt,  larceny  from  the  person 
involves  an  assault,  but  it  is  the  mere  force  of  taking  the 
thing.  In  robbery,  the  force  or  fear  is  prior  to  the  larceny, 
and  preliminary  to  and  distinct  from  the  taking.^  And  a 
thing  is  said  to  be  on  the  person  if  it  is  attached,  as  a  watch 
by  a  chain,  or  is  otherwise  so  related  to  the  person  as  to  par- 
take of  its  protection.*  We  have  already  seen  that  the  actual 
taking  of  a  thing  on  the  person  in  the  hand,  and  removing  it 
from  contact  or  connection  with  the  person,  is  a  sufficient 
taking.-'' 

§  295.    Larceny  from  Building.^  —  Taking   property    in   or 

1  4  Bl.  Com.  243. 

2  Reg.  V.  Walls,  2  C.  &  K.  214  ;  C.  v.  Dlmond,  3  Cush.  (Mass.)  235. 

8  Rex  V.  Harmon,  1  Hawk.  P.  C.  (8th  ed.)  214,  §  7 ;  2  Russ.  on  Crimes 
(5th  ed.),  89  et  seq. 

*  Reg.  V.  Selway,  8  Cox  C.  C.  235,  C.  386.     See  also  poxt,  §  295. 

^  Anie,  §  277.  See  also  Flynn  v.  S.,  42  Tex.  301,  and  compare  as  to 
larceny  from  building.  Hicks  v.  S.,  101  Ga.  581,  28  S.  E.  917. 

**  Just  what  is  a  building  within  the  statute  often  depends  on  the  par- 
ticular word  employed.     See  Bishop  Stat.  Cr,  (4th  ed.)  §§  277  et  seq. ; 


Sect.  295.]  LARCENY.  289 

from  a  building  is  not  necessarily  larceny  in  a  building.  To 
constitute  larceny  in  a  building,  the  property  taken  must  be 
in  some  sense  under  the  protection  of  the  building,  and  not 
under  the  eye  or  personal  care  of  some  one  in  the  building.^ 
Thus,  if  a  pretended  purchaser,  having  got  manual  possession 
of  a  watch  in  a  store  for  the  purpose  of  looking  at  it,  leaves 
the  store  with  the  watch,  he  is  not  guilty  of  larceny  in  a 
building.  The  watch,  having  been  delivered  into  his  custody 
for  a  special  purpose,  cannot  be  said  to  be  under  the  protec- 
tion of  the  building.  And  even  though  it  had  not  been  so 
delivered,  but  had  been  merely  placed  on  the  counter  for 
inspection,  it  then  might  be  more  properly  said  to  be  under 
the  personal  protection  of  the  owner,  than  that  of  the  build- 
ing.^ So  the  snatching  of  property  hung  out  upon  the  front  of 
a  store  for  the  purpose  of  attracting  customers  is  not  larceny 
from  a  building.  The  goods  are  not  under  the  protection  of 
the  building.^  But  where  meat  was  hanging  in  its  regular 
place  on  a  hook  inside  a  shop  whence  it  was  stolen,  this  was 
larceny  from  the  building ;  and  lae  fact  that  an  officer  was 
there  to  watch  for  the  suspected  thief  made  no  difference.* 
The  distinctions  are  very  fine.  Thus,  if  a  person  on  retiring 
to  bed  places  his  watch  upon  a  table  by  his  bedside,  even 
within  his  reach,  the  taking  of  it  while  he  is  asleep  is  larceny 
from  the  building.^  The  taking  of  it  while  he  is  awake  would 
probably  amount  to  simple  larceny  only,^  the  property  not 
being  so  related  to  the  person  as  to  be  under  his  protection  ; 
while  if  taken  from  under  the  pillow  of  the  owner  while  he  is 
asleep,  especially  if  the  taking  involved  a  disturbance  of  the 

Williams  v.  S.,  105  Ga.  814,  32  S.  E.  129;  S.  v.  Hanlon,  32  Or.  95,  48  P. 
353.     Compare  Willis  v.  S.,  102  Ga.  572,  28  S.  E.  917. 

1  Rex  V.  Campbell,  2  Leach  (3d  ed.),  942,  C.  387. 

2  Rex  V.  Owen,  2  Leach  (3d  ed.),  652,  M.  829;  C.  v.  Lester,  129  iMass. 
101;  S.  i\  Patterson,  98  Mo.  283,  11  S.  W.  728  ;  co/j/ra,  Simmons  v.  S., 
73  Ga.  609. 

3  Henry  v.  S.,  39  Ala.  679;  Martinez  v.  S.,  41  Tex.  126.  Compare 
Burge  V.  S.,  62  Ga.  170. 

4  C.  V.  Nott,  135  Mass.  269. 

5  Rex  V.  Hamilton,  8  C.  &  P.  49. 

«  Rex  V.  Taylor,  R.  &  R.  418,  C  389;  C  v.  Smith,  111  Mass.  429. 

19 


290  CRIMINAL   LAW.  [Skct.  296. 

person,  it  might  be  larceny  from  the  person.^  The  question 
in  all  cases  is  whether  the  property  is  so  situated  that  it  may 
be  taken  without  a  violation  of  the  protection  supposed  by 
the  law  to  be  afforded  by  being  kept  in  a  building,  or  being 
within  the  personal  custody  of  the  owner.  If  so,  then  simple 
larceny  only  is  committed.  If,  on  the  other  hand,  the  protec- 
tion afforded  by  the  building  or  by  personal  custody  be  vio- 
lated, then  the  larceny  is  from  the  building  or  from  the  per- 
son, as  the  case  may  be.^  The  personal  custody  need  not  be 
actual,  but  may  be  constructive,  as  the  cases  just  cited  show. 
And  perhaps  a  case  might  be  supposed  where  the  protection 
of  the  building  would  be  constructive  also.^  The  old  notion 
that  in  order  to  constitute  larceny  from  the  person  the  larceny 
must  be  by  stealth,  privily  or  clandestinely,  and  without  the 
knowledge  of  the  owner,  which  was  embodied  in  some  early 
statutes,  is  probably  not  now  recognized  by  the  law  of  any 
State.* 

Since  the  building  is  not  meant  to  be  a  protection  against 
the  owner  of  it,  a  larceny  by  the  owner  of  the  house  is  not 
larceny  from  the  building.^  And  for  the  same  reason  a  lar- 
ceny by  the  owner's  wife  is  not  a  larceny  from  the  building.*^ 
But  this  is  not  so  where  the  thief  is  simply  a  lodger  or 
boarder ;  a  larceny  by  him  may  be  larceny  from  the  building.^ 

§  296.   Place.  —  That  larceny  in  one  jurisdiction  of  goods 

1  Contra,  P.  v.  McElroy,  116  Cal.  583,  48  P.  718. 

2  Reg.  V.  Selwav,  8  Cox  C.  C.  235,  C  386. 

3  See  also  U.  S.  v.  Jones,  3  Wash.  C.  Ct.  209,  Fed.  Cas.  No.  15,494, 
and  ante,  Robbery. 

*  Rex  V.  Francis,  2  Str.  1015;  Reg.  v.  Walls,  2  C.  &  K.  214;  Reg.  i-. 
Selway,  ante;  Higgs  v.  S.,  113  Ala.  36,  21  So.  353;  C.  v.  Dimond,  3 
Cush.  (Mass.)  235;  2  Bish.  New  Cr.  Law,  §§  895  et  seq. ;  co7itra,  Moye 
V.  S.,  65  Ga.  754.  In  Texas  the  taking  may  be  either  secret  or  so  sudden 
that  there  is  no  opportunity  for  resistance:  Green  i\  S.,  28  Tex.  App.  493, 
13  S.  W.  784;  Dukes  v.  S.,  22  Tex.  App.  192,  2  S.  W.  590. 

5  Rex  v.  Gould,  Leach  C.  C.  (4th  ed.)  217,  C.  390;  C.  v.  Hartnett,  3 
Gray  (Mass.),  450.  But  see  Reg.  v.  Bowden,  2  Moo.  C.  C.  285,  C.  390; 
so  as  to  larceny  from  a  vessel.  Rex  v.  Madox,  R.  &  R.  92,  C.  301,  M.  738. 

^  Rex  V.  Gould,  ante. 

T  Rex  V.  Taylor,  R.  &  R.  418,  C.  389,  M.  830 ;  Rex  v.  Hamilton,  8  C. 
&  P.  49. 


Sects.  297-299.]  EMBEZZLEMENT.  291 

thence  transported  to  another  jurisdiction  may  be  larceny  in 
the  latter  has  already  been  shown.^ 

§  297.  The  larceny  at  the  same  time  of  property  of  differ- 
ent owners,  though  sometimes  held  to  be  separate  larcenies 
of  the  property  of  the  different  owners,  is  but  a  single  act; 
and,  both  upon  the  reason  of  the  thing  and  the  tendency  of 
the  modern  authorities,  constitutes  but  a  single  offence.  The 
act  as  an  offence  is  against  the  public,  and  not  against  the 
several  owners,  witli  reference  to  whom  it  is  but  a  trespass. 
The  allegation  of  ownership  is  for  the  purpose  of  identifica- 
tion of  the  property,  and  is  but  matter  of  pleading.^ 

EMBEZZLEMENT. 

§  298.  Embezzlement,  though  not  an  offence  at  common 
law,  is  now  so  universally  made  such  by  statute  as  to  be  of 
general  interest,  subject  to  special  statutory  differences  or 
limitations.  It  may  be  defined  generally  as  the  fraudulent 
appropriation  of  another's  property  by  one  who  has  the  lawful 
possession  ;  and  is  distinguished  from  larceny  by  the  fact  that 
in  the  latter  the  possession  is  not  given  but  is  wrongfully  taken. 
The  statutes  creating  the  crime  of  embezzlement,  it  has  been 
well  said,  "  have  all  been  devised  for  the  purpose  of  punishing 
the  fraudulent  and  felonious  appropriation  of  property  which 
had  been  entrusted  to  the  person  by  whom  it  was  converted  to 
his  own  use  in  such  a  manner  that  he  could  not  be  convicted 
of  larceny  for  ap{)ropriating  it."  If  the  property  at  the  time 
it  is  taken  is  in  the  possession,  actual  or  constructive,  of  the 
owner,  it  is  larceny  ;  if  it  is  not,  it  is  embezzlement.^ 

§  299.  Possession  and  Custody  Distinguished.  —  Nice  ques- 
tions have  arisen  as  to  what  constitutes  the  possession  which 
is  violated  in  larceny,  but  which  in  embezzlement  is  in  the  al- 

1  Ante,  §  80. 

2  Lowe  V.  S.,  57  Ga.  171;  Bell  v.  S.,  42  Ind.  335;  Nichols  p.  C,  78 
Ky.  180  ;  S.  v.  Morphin,  37  Mo.  373;  S.  i'.  Merrill,  44  N.  H.  624;  S.  v. 
Hennessey,  23  O.  St.  339 ;  Wilson  v.  S.,  45  Tex.  76. 

3  Kex  V.  Bazeley,  2  Leach  C.  C  (4th  ed.)  835,  K.  305  ;  C.  v.  Berry, 
99  Mass.  428;  C.  v.  Hays,  14  Gray  (Mass.),  62. 


292  CRIMINAT^  LAW.  [Sect.  299. 

leged  delinquent.  Where  there  is  no  general  relationship,  as 
that  of  principal  and  agent,  or  employer  and  employee,  other 
than  that  of  a  special  and  particular  trust,  little  difficulty 
arises.  The  party  trusted  has  the  possession  by  delivery  for 
a  purpose,  and  having  the  right  to  the  possession,  violates  the 
trust  by  fraudulently  co)iverting  the  property  to  his  own 
use,  whereby  the  crime  of  embezzlement  becomes  complete. 
Where,  however,  this  general  relationship  of  employer  and 
employee  exists,  it  often  becomes  a  question  of  some  difficulty 
to  determine  which  party  has  the  possession,  —  a  difficulty 
which  can  be  best  illustrated  by  reference  to  a  few  decided 
cases.  Thus,  if  a  teller  in  a  bank,  to  whom  the  funds  of  the 
bank  are  intrusted  during  business  hours  for  the  purpose  of 
transacting  the  business  of  the  bank,  abstracts  the  funds  from 
the  vault  after  business  hours,  and  after  they  have  been  with- 
drawn from  his  possession  and  put  under  the  control  of  the 
cashier,^  this  is  larceny,  because  the  funds  were  in  the  posses- 
sion of  the  bank.  So  if  a  clerk  ordinarily  intrusted  with  the 
sale  of  goods,  after  the  store  is  closed,  enters  the  store  and 
takes  away  the  goods.^  Money  taken  from  the  till  of  the 
master  by  a  servant  is  stolen,  because  it  is  taken  from  the 
possession  of  the  master,  the  servant  having  only  the  custody. 
Money  taken  from  a  customer  by  the  servant,  and  put  in  his 
own  pocket  before  it  reaches  the  till,  is  embezzled,  the  servant 
having  possession  for  delivery  to  tlic  master,  —  the  latter, 
however,  never  having  possessed  it.-^  The  distinction  is  very 
fine,  though  clear,  and  seems  to  be  supported  by  the  authori- 
ties. In  some  States,  however,  the  peculiarities  of  the  statute 
seem  to  authorize  an  indictment  for  embezzlement  where  the 
possession  has  reached  the  master,  and  the  servant  holds  for 
him,*  by  what  is  elsewhere  generally  regarded  as  a  mere  cus- 

1  C.  V.  Barry,  116  Mass,  1. 

2  C.  V.  Davis,  104  Mass.  548. 

8  Rex  V.  Murray,  5  C  &  P.  145,  1  Moo.  C.  C.  276,  C.  310,  K.  318; 
Reg.  V.  Watts,  4  Cox  C.  C.  336,  2  Den.  C.  C.  14,  C.  312 ;  Reg.  v.  Hawkins, 
1  Den.  C.  C.  584;  C.  v.  King,  9  Cash.  (Mass.)  281;  C.  v.  Berry,  99  I\Iass. 
428;  P.  w.  Hennessey,  15  Wend.  (N.  Y.)  147;  U.  S.  v.  Clew,  4  Wash, 
C.  Ct.  790,  Fed.  Cas.  No.  14,819. 

*  Lowenthal  v.  S.,  32  Ala.  589 ;  P.  v.  Hennessey,  ante. 


Sect.  300.]  EMBEZZLEMENT.  293 

tody  or  bare  charge.^  The  theory  of  constructive  possession 
was  early  carried  to  a  great  length,  in  order  to  make  the  law 
of  larceny  apply  to  acts  which  as  yet  no  statute  of  embezzle- 
ment had  covered.  Thus,  a  watch  placed  in  the  hands  of  a 
watchmaker  to  be  cleaned  was  held  to  be  in  the  possession  of 
the  owner,  so  that  the  conversion  of  it  was  larceny  in  the 
watchmaker.^ 

§300.  Clerk.  Servant.  Agent.  Officer.  —  What  constitutes 
the  several  relationships  of  master  and  servant,  employer 
and  clerk,  principal  and  agent,  and  the  exact  meaning  of 
the  several  terms,  has  also  been  the  subject  of  much  dis- 
cussion. There  seems  to  be  little  or  no  distinction,  so  far  as 
the  law  of  embezzlement  is  concerned,  between  the  words 
"clerk"  and  "servant,"  though  in  popular  parlance  they 
would  hardly  be  confounded ;  but  between  them  and  the  word 
"asent"  there  is  a  distinction  made.  Just  where  the  line  is 
drawn,  however,  as  between  the  one  and  the  other,  is  not  very 
well  defined.  Though,  in  general,  the  idea  of  continuity  of 
service  underlies  the  relation  of  clerkship  or  service,  yet 
this  is  by  no  means  necessary  ;  and  an  agency  may  be  general 
and  continuous  as  well ;  so  that  such  continuity  is  not  deci- 
sive as  a  criterion,  though  doubtless  of  some  importance.  In 
fact,  continuity  is  not  essential  to  the  quality  of  servant  or 
clerk.3  And  it  would  seem  that  the  same  principle  would  ap- 
ply here  as  with  larceny,  that  if  the  relation,  whether  of  master 
and  servant  or  otherwise,  has  in  fact  been  constituted,  it  is 
immaterial  that  it  is  temporary,  if  the  property  is  obtained  as 
a  result  thereof.  Thus  where  A  farmed  the  tolls  in  X  and  Y 
and  regularly  employed  B  to  collect  them  in  X,  and  on  one 
occasion  requested  him  to  receive  the  tolls  from  Y  from  the 
collector  for  that  district,  an  embezzlement  of  them  by  B  when 
so  received  was  held  within  the  statute.*     Perhaps  the  idea  of 

1  1  Hawk  P.  C.  (8th  ed.)  144,  §  6. 

2  Ibid.,  §  10. 

3  Reg.  V.  Negus,  L.  R.  2  C.  C.  34,  K.  306;  Reg.  v.  Spencer,  R.  &  R.  299. 
*  Rex  V.  Smith,  1  Lewin  C.  C.  86,  M.  830  ;  Reg.  v.  Hughes,  1  ]\Ioo.  C. 

C.  370;  Wynegar  v.  S.,  157  Ind.  577,  62  N.  E.  38;  S.  r.  Costin,  89  N. 
C.  511;  Campbell  v.  S.,  35  O.  St.  70;  Goodwyu  r.  S.  (Tex.),  64  S.  W. 
251. 


294  CRIMINAL   LAW.  [Sect.  300. 

control  is  more  distinctly  characteristic  of  tlie  relationship  of 
master  and  servant  than  of  that  of  principal  and  agent.^     Yet 
even  here  the  agency  may  be  such  as  to  give  the  principal  as 
full  control  of  his  agent  as  if  he  were  a  servant.     An  agent  is 
always  acting  for  his  principal,  with  authority  to  bind  him  to 
the  extent  of  his  agency  ;  while  a  servant,  though  in  a  certain 
sense  acting  for  his  master,  has  not  the  representative  charac- 
ter of  an  agent,  and  has  no  authority,  as  servant,  to  bind  his 
master.     His   negligence,  however,   may  be   imputed  to  the 
master.     Personal  presence  and  supervision  also  belong  more 
especially  to  the  idea  of  mastership.^     Still  it  is  only  the  cir- 
cumstances of  each  particular  case  which  will  determine  under 
which  category  a  particular  person  comes;  and  no  better  aid 
in  this  particular  can  be  given  than  by  a  reference  to  cases 
which  involve  special  circumstances.     Thus,  although  an  ap- 
prentice is  not  technically  a  servant,  he  may,  under  special 
circumstances,  be  one  within  the  meaning  of  the  statute  of 
embezzlement.^     But  a  general  agent  of  an  insurance  company 
resident  abroad  is  not  a  servant ;  *  and  though  a  person  em- 
ployed to  sell  goods  on  commission  and  collect  the  purchase 
money  is  not  a  clerk,^  a  commercial  traveller,  who  does  not 
live  with  his  employers,  or  transact  business  at  their  store, 
may  be  ;^  while  one  who  receives  material  to  be  wrought  upon 
in  his  own  shop,  and  to  be  returned  to  the  owner  in  the  shape 
of  manufactured  goods,  is  neither  a  clerk,  servant,  nor  agent.^ 
Neither  is  a  constable  who  receives  a  warrant  to  collect,  with 
Instructions  to  have  it  served  if  not  paid.     He  is  rather  a  pub- 
lic  officer.^      So    the    keeper    of   a    county   poorhouse  stands 
rather  in  the  relation  of  a  public  officer  than  of  servant  to  the 
superintendent  who  appoints  him.^ 

1  Reg.  V.  Bowers,  L.  R.  1  C  C.  41,  C.  402. 

2  Rex  V.  Squire,  Russ.  &  Ry.  349. 
8  Rex  V.  Mellish,  Russ.  &  Ry.  80. 

4  Reg.  V.  May,  L.  &  C.  13. 

5  Reg.  V.  Bowers,  ante. 

6  Rex  V.  Carr,  Russ.  &  Ry.  198. 

'  C.  V.  Young,  9  Gray  (Mass.),  5. 

8  P.  V.  Allen,  5  Den.^N.  Y.)  76. 

9  Coats  V.  P.,  22  N.  Y.  245. 


Sect.  301.]  EMBEZZLEMENT.  295 

§301.   Agency. — But   not  all   agencies  come   within   the 
purview  of  this  statute. 

One  whose  business  is  that  of  a  general  agent  for  divers 
persons,  which  from  its  very  nature  carries  with  it  the  implied 
permission  to  treat  the  moneys  received  as  a  general  fund  out 
of  which  all  obligations  are  to  be  paid,  such  fund  to  be  used 
and  denominated  as  his  own,  is  not  held  to  be  an  agent  within 
the   meaning   of   the   statute    of   embezzlement.      Thus,   an 
auctioneer,  who  is  the  agent  of  the  buyer  and  the  seller  for 
effecting  the  sale,  would  find  it  wholly  impracticable  to  carry 
on  his  business  if  he  were  obliged  to  keep  separate  the  funds 
of  each  particular  seller. i     So  a  general  collector  of  accounts 
is  not  such  an  agent  of  those  for  whom  he  collects,^  nor  is  a 
general  insurance  agent  receiving  premiums  for  divers  com- 
panies.^    Nor  would  a  general  commission  merchant  be ;  nor 
any  person  who,  from  the  nature  of  his  business  or  otherwise, 
has  authority  to  confound  and  deposit  in  one  account,  as  his 
own,  funds  received   from  divers  sources.*     But  if  the  de- 
fendant, although    having   a   general  authority  to  confound, 
holds    money    under   a    special    contract    forbidding   this   he 
would  be  liable.-^     But  in  general,  wherever  it  was  the  inten- 
tion of   the  parties  to   create  only  a  relation  of  debtor  and 
creditor,  it  is  clear  that  a  failure  to  pay  the  amount  due  can 
not  be  embezzlement,^ 

The  word  "  ofificer,"  as  used  in  statutes  of  embezzlement, 
has  been  held  to  apply  to  the  sheriff  of  a  county,''  the  treasurer 

1  C.  V.  Stearns,  2  Met.  (Mass.)  343. 

2  C.  V.  Libbey,  11  Met.  (Mass.)  61  ;  accord,  Reg.  v.  Hoare,  1  F.  & 
F.  647.     Compare  S.  v.  Thomsou,  155  Mo.  300,  55  S.  W.  1013. 

3  P.  V.  Howe,  2  T.  &  C.  (N.  Y.)  3S3. 

<  C.  V.  Foster,  107  Mass.  221;  Mulford  v.  P.,  139  111,  586,  28  N.  E. 
1096;  P.  V.  Wadsworth,  63  Mich.  500,  30  N.  W .  99.  Otherwise,  by 
statute  in  Illinois,  as  to  commission  merchants,  warehousemen,  etc., 
Wriglit  V.  P.,  61  111.  882. 

5  C.  V.  Foster,  ante;  S.  v.  Cunningham,  154  Mo.  161,  55  S.  W.  282. 
Compare  C.  v.  Smith,  129  Mass.  104. 

^  See,  in  addition  to  cases  ante,  S.  v.  Brown,  171  Mo.  477,  71  S.  W. 
1031;  S.  r.  Barton,  125  N.  C.  702,  34  S.  E.  553. 

'  S.  V.  Brooks,  42  Tex,  62. 


296  CRIMINAL   LAW.  *      [Sect.  302. 

of  a  town,^  of  a  county ,2  of  a  State,^  a  selectman,^  a  justice  of 
the  peace,^  the  directors  of  a  bank,^  and  the  treasurers  of 
railroads  and  other  bodies  politic.^  And  it  is  immaterial 
whether  the  corporation  is  de  jure,  or  simply  defacto.^  So  it 
is  enough  if  the  defendant  is  a  de  facto  officer.^  Perhaps 
"  servant "  would  aptly  describe  such  persons,  if  the  word 
"  ofiQoer  "  was  not  in  the  statute.^*^ 

§  302.  Employment.  —  Embezzlement,  as  we  have  seen,  is 
substantially  a  breach  of  trust;  and  is  the  peculiar  crime  of 
tliose  who  are  employed  or  trusted  by  others.  Hence,  if  there 
is  no  employment  of  A  by  B  there  can  be  no  embezzlement 
by  A  of  money  or  property  which  he  may  have  acquired  even 
though  with  a  duty  to  deliver  it  to  B.  Thus,  where  it 
was  A's  business  to  carry  gloves  from  X  to  Y,  receive  the 
money  for  them  and  deliver  it  to  the  glove  makers  at  X, 
he  was  held  to  be  a  carrier  and  his  duty  to  the  glove  makers 
to  arise  from  that  fact,  not  from  any  peculiar  relation  of  con- 
fidence or  trust  between  themselves  and  liim  ;  consequently, 
a  felonious  conversion  by  him  of  money  thus  received  was 
not  embezzlement.^^     So  where  a  bankrupt  made  an  assign- 

1  C.  V.  Este,  140  Mass.  279,  2  X.  E.  769 ;  Bork  v.  P.,  91  N.  Y.  5. 

2  S.  V.  King,  81  la.  587,  47  N.  W.  775;  S.  v.  Smith,  13  Kan.  274; 
S.  V.  Czizek,  38  Minn.  192,  36  N.  W.  457. 

3  S.  V.  Archer,  73  Md.  44,  20  Atl.  172  ;  P.  v.  McKinney,  10  Mich.  54  ; 
Hemingway  v.  S.,  68  Miss.  371,  8  So.  317.  See  also  S.  v.  Parsons,  54  la. 
405,  6  N.  W.  579  ;  S.  v.  Walton,  62  Me.  106 ;  S.  v.  White,  66  Wis.  343, 
28  N.  W.  202. 

*  S.  V.  Boody,  53  N.  H.  610. 

5  Crump  V.  S.,  23  Tex.  App.  615,  5  S.  W.  182. 

6  C.  V.  Wyman,  8  Met.  (Mass.)  247. 

7  Reeves  v.  S.,  95  Ala.  31,  11  So.  158;  C.  v.  Tuckerman,  10  Gray 
(Mass.),  173. 

8  Kossakowski  v.  S.,  177  111.  503,  53  N.  E.  115;  P.  i'.  Hawkins,  106 
Mich.  479,  64  N.  W.  736;  P.  v.  Carter,  122  Mich.  668,  81  N.  W.  924; 
S.  V.  Reynolds,  65  N.  J.  L.  424,  47  Atl.  644. 

9  S.  V.  Findley,  101  Mo.  217,  14  S.  W.  185. 

10  Rex  V.  Squire,  Russ.  &  Ry.  349;  Reg.  v.  Welch,  2  C.  &  K.  296. 
The  term  "officer"  does  not  include  clerks,  S.  v.  Denton,  74  Md.  517, 
22  Atl.  305;  U.  S.  v.  Smith,  124  U.  S.  525. 

11  Reg.  V.  Gibbs,  6  Cox  C.  C  455.     See  also  Colip  v.  S.,  153  Ind.  584, 


Sect.  302.]     '  EMBEZZLEMENT.  297 

ment  of  his  property,  a  conversion  by  him  of  debts  which  he 
collected  was  no  embezzlement ;  since  the  legal  title  to  them 
was  still  in  him  and  he  neither  received  the  money  nor  owed 
the  duty  of  paying  it  to  the  assignees  because  of  any  employ- 
ment.i  So  where  the  teller  of  a  bank  misread  a  draft  and 
intentionally  paid  $200  where  only  $100  was  called  for,  the  felo- 
nious retention  of  the  balance  by  the  payee  was  not  embezzle- 
ment, since  it  had  not  come  to  him  through  any  trust  reposed 
in  him  by  the  teller.^  Many  of  the  statutes  limit  the  crime 
to  cases  where  the  fraudulent  commission  is  by  one  who  gets 
possession  of  the  money  or  property  "  by  virtue  of  his  em- 
ployment." Under  this  limitation  it  has  been  held,  by  a  very 
strict  construction,  that  if  a  servant  employed  to  sell  goods 
at  a  fixed  price  sells  them  at  a  less  price,  and  embezzles  the 
money, — that  money  not  being  the  master's,  but  the  pur- 
chaser still  remaining  bound  for  the  full  fixed  price,  —  the 
servant  docs  not  come  in  possession  of  his  master's  money 
by  virtue  of  his  employment.^  So,  when  a  servant  receives 
money  for  the  use  of  his  master's  property,  but  in  a  manner 
contrary  to  his  right  or  authority,  and  in  violation  of  his 
duty,  it  is  said  not  to  be  his  master's  money,  but  rather  his 
own.*  But  this  strictness  of  interpretation  has  not  been 
followed  in  this  country,  where  it  has  been  held  that,  if  an 
agent  obtains  money  in  a  manner  not  authorized,  and  in 
violation  of  his  duty,  yet  under  tlie  guise  of  his  agency,  he  gets 
it  by  virtue  of  his  employment ;  °  thus,  where  an  agent  for 
the  sale  of  land  fraudulently  had  notes  made  payable  to 
himself  he  was  guilty  of  embezzlement  of  the  funds  so  ob- 

55  N.  E.  739  ;  Reed  v.  S.,  16  Tex.  App.  586.  In  many  States  bailees 
are  included  within  the  embezzlement  statutes. 

1  Reg.  V.  Barnes,  8  Cox  C.  C.  129,  C  394. 

2  C.  V.  Hays,  14  Gray  (Mass.),  62,  C.  407. 

3  Reg.  V.  Aston,  2  C.  &  K.  413,  M.  838;  Rex  v.  Snowley,  4  C.  &  P. 
390,  M.  837. 

4  Reg.  V.  Harris,  6  Cox  C.  C.  363,  C.  397;  Reg.  v.  Cullum,  L.  R.  2 
C.  C.  28,  C.  398,  K.  311,  M.  839  ;  Reg.  v.  Read,  L.  R.  3  Q.  B.  D.  131 ; 
Brady  v.  S.,  21  Tex.  App.  659,  1  S.  W.  462 ;  Loving  y.  S  ,  44  Tex.  Cr. 
K.  373,  71  S.  W.  277. 

6  Ex  parte  Hedley,  31  Cal  108. 


298  CRIMINAL   LAW.  [Sects.  303,  304. 

tained;!  g^  where  a  clerk  after  being  discharged,  received 
moneys  paid  in  the  belief  that  he  was  still  clerk,  they  were 
held  to  be  obtained  by  him  in  the  course  of  his  employment.^ 
Later  English  cases  seem  now  in  accord  with  this  view.^ 

§  303.  Sul)ject  Matter  of  Embezzlement.  —  It  is  generally  pro- 
vided that  all  matters  which  may  be  subjects  of  larceny  may 
also  be  subjects  of  embezzlement.  Some  statutes,  however, 
are  not  so  comprehensive.  Save  these  differences,  which  can- 
not here  be  particularized,  it  may  be  said  that  whatever  may 
be  stolen  may  be  embezzled  ;  and  what  may  be  stolen  has 
been  considered  under  the  title  Larceny.  And  as  is  also  the 
case  in  larceny,  it  is  not  necessary  that  the  person  from  whom 
the  property  is  embezzled  should  have  a  title  good  against  all 
the  world.  It  is  enough  that  as  between  him  and  the  defend- 
ant the  latter  owes  the  duty  of  delivering  as  stated  above.^ 

§  304.  Intent  to  Defraud  is  an  essential  element  of  the  case. 
And  if  the  money  is  taken  under  a  claim  of  right,  as  where  a 
cashier  of  a  mercantile  establishment  intercepts  funds  of  his 
employers,  and  without  their  knowledge  and  against  their 
wish  appropriates  them  to  the  payment  of  his  salary,  by 
charging  them  to  his  account,  this  is  no  embezzlement.^  So 
if  the  use  of  money  was  made  in  good  faith,  with  no  intention 
of  depriving  the  owner  of  it,  the  mere  inability  to  return  the 
money  does  not  make  the  act  embezzlement.^     But  the  mere 

1  S.  V.  Rue,  72  Minn.  296,  75  N.  W.  235 ;  S.  v.  Schlib,  159  Mo.  130, 
60  S.  W.  S2. 

2  S.  V.  Jennings,  98  Mo.  493,  11  S.  W.  9S0.  See  also  S.  v.  Patterson, 
66  Kan.  447,  71  P.  860  ;  P.  v.   Butts,  128  IMich.  208,  87  N.  W.  224. 

3  Reg.  i:  Beechey,  Russ.  &  Ry.  319 ;  Rex  v.  Salisbury,  5  C.  &  P.  155 ; 
Reg.  V.  Wilson,  9  C.  &  P.  27,  K.  313. 

4  Rex  V.  Beacall,  1  C.  &  P.  454;  Reg.  v.  Stainer,  L.  R.  1  C.  C.  230; 
S.  V.  Sienkiewicz,  4  Penne.  (Del.)  59,  55  Atl.  346;  S.  v.  Tuniey,  81  Ind. 
559;  S.  V.  Cunningham,  154  Mo.  161,  55  S.  W.  282;  S.  v.  Hoshor,  26 
Wash.  643,  67  P.  386. 

5  Ross  V.  lunis,  35  111.  487;  Kirby ;;.  Foster,  17  R.  I.  437,  22  Atl.  1111. 

6  Henderson  v.  S.,  129  Ala.  104,  29  So.  799;  S.  v.  O'Kean,  35  La.  Ann. 
901;  P.  V.  Hurst,  02  Mich.  276,  28  N.  W.  838;  P.  v.  Wadsworth,  63 
Mich.  500,  30  N.  W.  99 ;  S.  v.  Cowdery,  79  Minn.  94,  81  N.  W.  750  ;  Myers 
V.  S.,  4  O.  Circ.  Ct.  570. 


Sect.  305.J  FALSE  PRETENCES.  299 

hope  or  intention  of  making  good  the  loss  at  some  future  day 
will  not  prevent  the  crime  from  being  embezzlement.^ 


FALSE    PRETENCES. 

§  305.  Mere  verbal  lying,  whereby  one  is  defrauded  of  his 
property  without  the  aid  of  some  visible  token,  device,  or 
practice,  —  as  when  one  falsely  pretends  that  he  has  been 
sent  for  money ,2  or  falsely  states  that  goods  sold  exceed  the 
amount  actually  delivered,'^  or  falsely  asserts  his  ability  to 
pay  for  goods  he  is  about  to  buy,"*  —  was  not  formerly  an 
indictable  offence.  But  as  many  frauds  were  practised  in  this 
way  which  were  mere  private  frauds,  and  which  the  court, 
with  every  disposition  to  punish,  could  not  stretch  the  law  of 
larceny  to  cover,  it  was  at  length  enacted  ^  that  designedly 
obtaining  money,  goods,  wares,  or  merchandise  by  false  pre- 
tences, with  intent  to  defraud  any  person,  should  be  indictable. 
The  provisions  of  this  statute  have  been  so  generally  adopted 
in  this  country,  that,  if  it  cannot  be  said  to  be  strictly  part  of 
the  common  law,  it  may  be  considered  as  the  general  law  of 
the  land.  And  tliough  the  terms  in  which  the  enactment  is 
made  may  slightly  differ  in  the  different  States,  yet  they  are 
so  generally  similar  that  in  most  cases  the  decisions  in  one 
State  will  serve  to  illustrate  and  explain  the  statutes  in  others. 
And  as  the  words  of  the  statute  cover  cheats  as  well  by  words 
as  by  acts  and  devices,  indictments  under  the  statute  are  now 
usually  resorted  to,  unless  special  circumstances  or  special 
provisions  compel  a  resort  to  the  old  fcrm  of  pleading.  Under 
the  statutes,  in  order  to  constitute  the  offence,  it  must  appear 
(1)  that  the  pretence  is  false ;  (2)  that  there  was  an  intent 
to  defraud ;  (3)  that  an  actual  fraud  was  committed ;  (4) 
that  the  false  pretences  were  made  for  the  purpose  of  perpe- 

1  P.  V.  Jackson,  138  Cal.  462,  71  P.  566 ;  P.  v.  Warren,  122  Mich.  501, 
81  N.  W.  300;  P.  v.  Butts,  128  Mich.  208,  87  N.  W.  224. 

2  Reg.  V.  Jones,  1  Salk.  379. 

3  Rex  V.  Osborn,  3  Burr.  1697. 

4  C.  V.  Warren,  6  Mass.  72. 
6  30  Geo.  II,  c.  24. 


300  CRIMINAL   LAW.  [Sect.  306. 

trating  the  fraud  ;  (5)  and  that  the  fraud  was  accomplished  by 
means  of  the  false  pretences. ^ 

§  306.  (1.)  Pretence  Must  Be  False.  —  A  false  pretence  is  a 
false  statement  about  some  past  or  existing  fact,  in  contradis- 
tinction from  a  promise,  an  opinion,  or  a  statement  about  an 
event  that  is  to  take  place.  Thus,  a  pretence  that  one  has  a 
warrant  to  arrest,  if  false,  is  within  the  statute,^  while  a  pre- 
tence that  his  goods  "  are  about  to  be  attached  "  is  not.^  Nor 
is  a  statement  that  something  could,  would,  or  should  be 
done;^  thus  a  representation  that  a  person  will  not  be  able  to 
meet  a  note  when  it  becomes  due  is  not  a  pretence  within  the 
statute.^ 

The  shades  of  distinction  are  sometimes  very  nice.  Thus 
"I  can  give  you  employment"  is  no  pretence;^  but  "I  have 
a  situation  for  you  in  view  "  is.^  And  it  seems  that  the  false 
statement  of  an  existing  desire  or  intention  to  accomplish 
some  present  purpose,  may  be  a  false  pretence.^  Thus,  a 
promise  may  be  considered  as  a  statement  of  an  intention  to 
carry  out  the  promise ;  and  if  there  was  no  such  intention,  it 
is  a  false  pretence.^  But  on  the  other  hand,  in  many  cases  the 
promise  has  apparently  been  considered  by  the  courts  to  be, 
not  so  much  a  statement  of  the  present  frame  of  mind  on  the 
part  of  the  promisor  as  a  declaration  as  to  his  action  in  the 
future.  For  this  reason  it  is  generally  said  that  a  promise, 
since  it  looks  primarily  to  future  action,  cannot  be  a  sufficient 
false  pretence.  Thus,  where  the  defendant  got  money  on  the 
strength  of  a  statement  that  he  was  going  to  pay  his  rent,^*^  or 

1  C.  V.  Drew,  19  Pick.  (Mass.)  179. 

2  C.  V.  Henry,  22  Pa.  253. 
8  Burrow  v.  S.,  12  Ark.  65. 

4  Ryan  v.  S.,  45  Ga.  128;  S.  v.  Magee,  11  Ind.  154;  S.  v.  Evers,  49 
Mo.  542 ;  Johnson  v.  S.,  41  Tex.  65. 

5  C.  V.  Moore,  99  Pa.  570. 

6  Ranney  v.  P.,  22  N.  Y.  413. 

'  C.  V.  Parker,  Thatcher  Cr.  Cas.  (Mass.)  24. 

8  S.  V.  Rowley,  12  Conn.  101 ;  S.  v.  Sarony,  95  Mo.  349,  8  S.  W.  407; 
C.  V.  Walker,  108  Mass.  309. 

9  Reg.  V.  Jones,  0  Cox  C.  C.  407;  S.  v.  Dowe,  27  la.  273. 
10  Reg.  V.  Lee,  L.  &  C  309,  K.  323,  M.  851. 


Sect.  306.]  FALSE  PRETENCES.  301 

that  lie  would  marry  the  prosecutrix,^  or  that  he  was  gohig  to 
erect  a  soap  factory  near  the  prosecutor's  residence,^  or  was 
going  to  buy  cattle  with  the  money  advanced  hira,^  it  was  held 
that  the  statements  were  not  false  pretences  within  the  meaning 
of  the  criminal  law.^ 

The  same  distinction  exists  as  to  opinions.  Mere  opinions 
as  to  quality,  value,  quantity,  amount,  and  the  like,  are  held 
not  to  be  false  pretences.^  The  fact,  however,  that  one  does 
or  does  not  hold  an  opinion  is  as  much  an  existing  fact  as 
any  other ;  and  if  it  is  falsely  stated  with  intent  to  defraud, 
and  does  defraud,  it  is  in  every  particular  within  both  the 
letter  and  spirit  of  the  law.^  It  may  be  difficult  to  prove  that 
an  opinion  is  known  by  the  person  who  asserts  it  to  be  false, 
and  that  it  was  falsely  asserted  with  intent  to  defraud.  But 
this  is  a  question  of  procedure. 

The  belief  by  the  party  making  the  statement  that  it  is 
false  is  of  no  moment,  if  it  is  in  fact  true.'  Thus  where  A 
mortgaged  land  to  B,  and  then  in  the  presence  of  B  mortgaged 
it  to  C  with  the  statement  that  there  was  no  mortgage  on  the 
land  ahead  of  C's,  B  by  acquiescing  in  the  statement  was  held 
to  have  waived  his  priority  ;  consequently  A's  statement  was 
in  fact  true,  and  no  false  pretence.^  On  the  contrary,  if  the 
statement  be  false,  yet  he  believes  it  to  be  true,  this  is  not 
within  the  statute,  as  in  such  case  there  is  no  intent  to 
defraud. 

1  Reg.  V.  Johnston,  2  Moo.  C.  C.  254. 

2  P.  V.  Wheeler,  169  N.  Y.  487,  62  N.  E.  572. 
8  Cook  V.  S.  (Neb.),  98  N.  W.  810. 

4  See  further  Rex  r.  Douglas,  1  Moo.  C.  C.  462;  Rex  v.  Goodhall, 
R.  &  R.  461 ;  Reg.  v.  Gordon,  L.  R.  23  Q.  B.  D.  3-34,  K.  326 ;  Calhoun  v.  S., 
119  Ga.  312,46  S.  E.  428  ;  S.  v.  Colly,  39  La.  Ann.  841,  2  So.  496  ;  S.  v.  De- 
Lay,  93  Mo.  98,  5  S.  W.  607 ;  P.  v.  Blanchard,  70  N.  Y.  314 ;  P.  v.  Roth- 
stein,  95  App.  Div.  (N.  Y.)  292,  88  N.  Y.  S.  622. 

6  Reg.  V.  Williamson,  11  Cox  C.  C.  328;  Reg.  v.  Gates,  6  Cox  C.  C. 
540;  Reg.  v.  Bryan,  7  Cox  C.  C.  312;  Reg.  v.  Goss,  8  Cox  C.  C.  262  ; 
Reese  v.  Wyman,  9  Ga.  430 ;  S.  v.  Estes,  46  Me.  150;  Scott  v.  P.,  62  Barb. 
(N.  Y.)  62. 

6  Reg.  V.  Ardley,  L.  R.  1  C.  C.  301 ;  S.  v.  Toralin,  5  Dutch.  (N.  J.)  13. 

7  Rex  V.  Spencer,  3  C.  &  P.  420,  M.  850. 

8  S.  V.  Asher,  50  Ark.  427,  8  S.  W.  177. 


302  CRIMIXAL  LAW.  [Sect.  307. 

The  pretence  must  be  false  at  the  time  when  the  property- 
is  obtained.  If  it  be  false  when  made,  but  becomes  true  at 
the  time  when  the  property  is  obtained, —  as  where  one  states 
that  he  has  bought  cattle,  when  in  fact  he  had  not  at  the 
time  of  the  statement,  but  had  when  lie  obtained  the  money, 
—  there  is  no  offence.^  Vice  versa,  however,  if  the  statement 
be  true  when  made,  but  becomes  false  at  the  time  of  obtain- 
ing the  property,  —  as  if,  in  the  case  supposed,  the  cattle 
had  been  bought,  but  had  been  sold  at  the  time  when  the 
property  was  ol)tained,  —  then  the  offence  would  no  doubt  be 
committed. 

§  307.  Subject  Matter.  —  Any  lie  about  any  subject  matter, 
by  word  or  deed,  —  as  by  showing  a  badge,  or  wearing  a  uni- 
form, or  presenting  a  check  or  sample  or  trade-mark,  or  by  a 
look  or  a  gesture, —  subject  to  the  foregoing  limitations,  is  a 
false  pretence.  Thus,  if  one  falsely  assert  as  an  existing  fact 
that  he  possesses  supernatural  power,^  or  that  he  has  made  a 
bet,2  or  that  he  is  pecuniarily  responsible  *  or  irresponsible,^  or  is 
a  certain  person,^  or  that  he  is  agent  for  or  represents  a  certain 
person,'^  or  belongs  to  a  certain  community  ^  or  military  organ- 
ization,^ or  is  married,^'^  or  unniarried,^^  or  engaged  in  a  certain 
business,^^  or  that  a  horse  which  he  offers  to  sell  is  sound, ^'^  or 
that  a  flock  of  sheep  is  free  from  disease,^^  or  any  other  lie  about 
any  matter  where  money  is  fraudulently  obtained,  —  the  oiTence 

1  In  re  Snyder,  17  Kan.  512 :  P.  r.  Wheeler,  1G9  X.  Y.  487,  62  X.  E. 
572. 

•-  Reg.  V.  Giles,  10  Cox  C  C.  U ;  Reg.  v.  Bunce,  1  F.  &  F.  523. 

8  Young  V.  Rex,  3  T.  R.  93. 

*  S.  V.  Pryor,  30  Ind.  350. 

6  S.  r.  Tomlin,  5  Dutch.  (X.  J.)  13. 

6  C.  V.  Wilgus,  4  Pick.  (Mass.)  177  ;  P.  v.  Cook,  41  Hun  (X.  Y.),  167. 

'  P.  V.  John.son,  12  Johns.  (X.  Y.)  292. 

8  Rex  r.  Barnard,  7  C.  &  P.  784. 

9  Hamilton  v.  Reg.,  9  Q.  B.  271;  Thomas  v   P.,  34  N.  Y   351. 

10  Reg.  v.  Davis,  11  Cox  C.  C.  181. 

11  Reg.  V.  Copeland,  C.  &  M.  516  ;  Reg.  v.  Jennison,  9  Cox  C.  C.  158, 
L.  &  C.  157,  K.  324. 

12  P.  V.  Dalton,  2  Wheeler  Cr.  Cas.  (X.  Y.)  161. 

13  S.  '.-.  Stanley,  64  Me.  157. 

"  P.  V.  Crissie,  4  Den.  (X.  Y.)  525. 


Sect.  308.]  FALSE  PRETENCES.  303 

is  complete.  ""WTiv  should  ^e  not  hold  that  a  mere  lie  about 
any  existing  fact,  told  for  a  fraudulent  purpose,  should  be  a 
false  pretence  ?"^ 

§  308.  ''  Puffing."  —The  ordinary  "  puffing"  of  the  quality 
of  an  article,  such  as  is  to  be  expected  in  the  course  of  trade, 
though  perhaps  immoral,  is  not  criminal ;  because  it  is  a 
mere  expression  of  opinion  such  as  the  purchaser  should  ex- 
pect and  be  on  the  lookout  against.  Thus,  a  statement  that 
certain  plated  spoons  were  equal  to  "  Elkinton's  A"  a  par- 
ticular sort  of  plated  goods^,  and  had  as  much  silver  as  those 
goods,  was  held  not  to  be  a  criminal  false  pretence  ;2  an  ex- 
treme case,  however,  and  one  with  which  dissatisfaction  has 
been  expressed.^  But  the  principle  was  clearly  correctlv  ap- 
plied in  cases  where  it  was  held  that  statements  that  land 
was  "nicely  located,"^  or  "well  wooded  and  with  valuable 
timber,"  °  were  mere  business  puffing. 

This  principle,  however,  will  not  excuse  a  positive  state- 
ment as  to  a  fact,  made  falsely  ;  as,  for  instance,  a  statement 
that  certain  goods  are  silver,  when  in  fact  they  are  of  base 
metal.^  Nor  will  it  excuse  a  false  representation  of  sound- 
ness upon  the  sale  of  a  horse."  So  where  a  dealer  sold  as 
"  good  tea  "  a  mixture  of  other  substances,  containing  onlv  a 
small  proportion  of  tea,  this  was  held  to  be  a  false  pretence ;  ® 
so  where  bonds  were  sold  under  a  false  statement  as  to  tlieir 
market  value.^  "  A  statement  may  be  a  mere  commendation 
or  expression  of  opinion,  by  which  the  seller  seeks  to  enhance 
the  price  of  the  property,  aud  justifiable  ;  but  when  it  is  made 
and  intended  as  an  assertion  of  a  fact  material  to  the  negotia- 

1  Alderson,  B.,  Reg.  r.  WooUey.  1  Den.  C.  C.  .559. 

«  Reg.  c.  Bryan,  7  Cox  C.  C.  sis,  Dears.  &  B.  265,  M.  855. 

«  Erie,  C.  J.,  in  Reg.  r.  Goss,  8  Cox  C.  C.  262. 

*  P.  V.  Jacobs,  35  Mich.  36. 

*  S.  r.  Paul,  69  Me.  215.  See  also  P.  v.  Morphy,  100  Cal.  S4.  3i  P. 
623 ;  S.  r.  Young,  76  X.  C.  258. 

«  Reg.  r.  Roebuck.  7  Cox  C.  C.  129  :  Reg.  r.  Ardlev,  L.  R.  1  C.  C.  oOl, 
M.  864. 

'  S.  r.  Stanley,  64  Me.  157 :  Jackson  i:  P.,  126  lU.  139,  IS  X.  E.  286. 
8  Reg.  r.  Foster,  L.  R.  2  Q.  B.  D.  301. 

*  P.  r.  Jordan,  66  Cal.  10,  4  P.  773. 


304  CRIMINAL   LAW.  [Sects.  309, 310. 

tion,  as  a  basis  on  which  the  sale  is  to  be  made,  if  it  be  false, 
and  is  known  to  the  seller  to  be  so,  the  seller  is  guilty  of  the 
offence,  if  he  thereby  induces  the  buyer  to  part  with  his 
property."  ^ 

§  309.  Implied  Representations.  —  There  may  be  an  obtain- 
ing by  false  pretences,  thougii  all  defendant's  statements  were 
true,  if  a  falsehood  was  implied.  Thus  where  one  sold  cer- 
tain goods  to  another,  having  previously  given  a  bill  of  sale 
of  them  to  a  third  party,  this  was  an  obtaining  by  false 
pretences.^ 

The  pretence  need  not  be  in  words  ;  the  falsity  may  consist 
entirely  in  acts.  Thus  where  the  defendant,  not  being  a  mem- 
ber of  the  University,  went  to  purchase  goods  in  Oxford 
wearing  a  sort  of  cap  worn  only  by  the  students  of  a  certain 
College,  it  was  held  to  be  an  obtaining  by  false  pretences.^ 
So  where  a  coal  miner,  who  was  paid  according  to  the  number 
of  tubs  of  coal  he  mined,  put  two  tickets  instead  of  one  into  a 
tub,  and  thus  secured  double  pay,  it  was  held  an  obtaining  by 
false  pretences.* 

The  giving  of  a  check  by  a  person  who  has  no  bank  account 
is  a  false  pretence.^  But  if  he  has  an  account,  and  a  reason- 
able belief  that  the  check  will  be  good  when  presented,  it  is 
not  a  false  pretence,  though  at  the  time  the  check  is  drawn 
there  is  no  money  in  the  bank  to  meet  it.^ 

§  310.  (2.)  Intent  to  Defraud.  —  If  the  money  be  obtained 
by  the  false  pretence,  the  intent  being  to  obtain  it  thereby,  as 
where  one  obtains  a  loan  upon  a  forged  certificate  of  stock  in 
a  railroad  company,  the  offence  is  complete,  though  the  party 

1  Jackson  v.  P.,  126  Til   139,  149,  18  N.  E.  286. 

2  Reg.  V.  Sampson,  52  L.  T.  772.  See  also  Reg.  v.  Randell,  16  Cox 
C.  C.  335. 

8  Rex  V.  Barnard,  7  C.  &  P.  784,  K.  333;  see  also  Reg.  v.  Bull,  13 
Cox  C.  C.  608. 

*  Reg.  V.  Hunter,  10  Cox  C.  C.  642.  See  also  Reg.  v.  Murphy,  Iri.sh 
Rep.  10  C.  L.  508,  K.  338,  M.  852  ;  Reg.  v.  Cooper,  L.  R.  2  Q.  B.  D.  510, 
K.  333. 

5  Rex  V.  Parker,  7  C.  &  P.  825;  P.  v.  Wasservogle,  77  Cal.  173,  19  P. 
270;  Barton  v.  P.,  135  111.  405,  25  N.  E.  776. 

6  Reg.  V.  Walne,  11  Cox  C.  C.  647;  C  v.  Drew,  19  Pick.  (Mass.)  179. 


Sect.  311.]  FALSE  PRETENCES.  305 

obtaining  the  money  fully  intended  and  believed  he  should 
be  able  to  pay  the  note  at  maturity  and  redeem  the  stock. ^ 
But  where  the  representation  is  made,  not  to  get  property  at 
all,  but  for  some  other  purpose,  the  crime  is  not  committed.-^ 
If  the  object  in  getting  possession  of  the  property  be  not  to 
defraud,  but  to  compel  payment  of  a  debt, — as  when  a  ser- 
vant gets  possession  of  the  goods  of  his  master's  debtor,  to 
enable  his  master  to  collect  his  debt,  —  the  offence  is  not 
committed.^  So  if  the  object  be  merely  to  get  one's  own 
property  from  the  possession  of  another.^ 

But  where  the  defendant  having  an  unliquidated  claim 
against  a  railroad  for  injuries,  by  false  representations  in- 
duced the  company  to  pay  a  large  sum,  the  fact  that  he  might, 
in  the  opinion  of  the  jury,  have  recovered  that  amount  in  an 
action  against  the  railroad  was  held  no  defence.^ 

§  311.  (3  and  4.)  Actual  Perpetration  of  the  Fraud.  —  If  the 
fraud  be  not  actually  accomplished  by  obtaining  the  goods, 
money,  etc.,  as  the  charge  may  be,  it  is  but  an  attempt,  and 
only  indictable  as  such.  And  if  a  person  is  merely  induced 
by  the  false  pretence  to  pay  a  debt  which  he  previously  owed, 
or  to  indorse  a  note  which  he  had  agreed  to  indorse,  it  is  no 
offence  under  the  statute.*^  So  it  has  been  held  in  New  York,^ 
that  parting  with  money  for  charitable  purposes  is  not  within 
the  statute.  Bat  this  case  rests  upon  the  supposed  restraining 
force  of  the  preamble  of  the  statute ;  and  elsewhere  the  law- 
has  been  held  to  be  the  reverse.*^     So  obtaining  a  promissory 

1  Reg.  r.  Naylor,  10  Cox  C.  C.  149,  M.  SSO;  C.  v.  Schwartz,  92  Ky. 
510,  18  S.  W.  358  ;  C.  v.  Coe,  115  Mass.  481 ;  S.  v.  Thatcher,  35  N.  J.  L. 
445. 

2  Rex  V.  Wakeling,  R.  &  R.  504;  Reg.  v.  Stone,  1  F.  &  F.  311,  M. 
880  ;  Hunter  v.  S.  (Tex.),  81  S.  W.  730. 

3  Rex  V.  Williams,  7  C.  &  P.  354,  M.  879;  C.  v.  McDuffy,  12G  Mass. 
467;  S.  V.  Hurst,  11  W.  Va.  54 ;  poi^t,  §  311. 

4  In  re  Cameron,  44  Kan.  64,  24  P.  90. 

6  C.  V.  Burton,  183  Mass.  461,  07  N.  E.  419. 

6  P.  V.  Getchell,  6  Mich.  496  ;  P.  v.  Thomas,  3  HiU  (N.  Y.),  169; 
ante,  §  310. 

7  -p.v.  Clough,  17  Wend.  351. 

8  Reg.  V.  Jones,  1  Den.  C  C.  551  ;  Reg.  v.  Hensler,  11  Cox  C.  C.  570,- 

20 


306  CRIMINAL  LAW.  [Sect.  312. 

note  from  a  minor  has  been  held  to  be  no  actual  fraud,  as  the 
minor  is  not  bound  to  pay  ;  ^  though  it  may  well  be  doubted 
if  the  paper  upon  which  the  note  is  written  is  not  "  goods," 
witliin  the  meaning  of  the  statute.^  So  where  the  defendant 
sells  by  false  pretences  a  promissory  note  which  in  fact  is 
perfectly  good,  the  crime  is  not  committed.^ 

From  the  rule  that  the  false  pretence  must  be  the  induce- 
ment for  parting  with  the  property,  it  follows  that  after 
possession  and  property,  —  though  under  a  v^oidable  title, —  is 
obtained,  a  false  representation,  whereby  the  owner  is  induced 
to  permit  the  property  to  be  retained,  does  not  amount  to  the 
offence;  as  where  a  vendor,  suspecting  the  solvency  of  the 
vendee,  proposes  to  retake  his  goods,  but  is  induced  by  false 
pretences  to  abandon  his  purpose ;  though  it  might  be  other- 
wise if  the  right  to  the  property  had  not  passed.* 

§  312.  Fraud  in  Both  Parties.  —  When  in  a  transaction  each 
party  makes  false  pretences,  and  each  defrauds  the  other,  — 
as  when  two  parties  exchange  watches,  each  falsely  pretending 
that  his  watch  is  gold  of  a  certain  fineness,  —  each  is  indict- 
able, and  neither  can  defend  on  the  ground  of  the  other's 
deceit.^  It  is  held  in  New  York,  however,  tliat  if  the  money 
parted  with  is  for  the  purpose  of  inducing  the  false  pretender 
to  violate  the  law,  as,  for  instance,  a  pretended  officer  not  to 
serve  a  warrant,  the  indictment  will  not  lie.^  But  this  case 
proceeds  upon  the  ground  that  the  object  of  the  statute  is  to 
protect  the  honest,  while  the  better  view  is  that  the  law  is  for 
the  protection  of  all,  by  the  punishment  of  rogues.  Tlie  ap- 
plication of  the  principle  that  one  man  may  escape  punishment 
for  crime  because  the  person  upon  whom  he  committed  it  was 

C.  V.  Whitcomb,  107  Mass.  486.     So  in  New  York  now  by  statute,  1851, 
c.  144,  §  1. 

1  C.  V.  Lancaster,  Thatch.  Cr.  Cas.  (Mass.)  428. 

2  Reg.  V.  Danger,  7  Cox  C.  C.  303. 

8  P.  V.  Wakely,  62  Mich.  297,  28  N".  W.  871. 

4  P.  V.  Haynes,  14  Wend.  (N.  Y.)  546. 

6  C.  V.  Morrill,  8  Cush.  (Mass.)  571. 

6  McCord  V.  P.,  46  N.  Y.  470,  C.  148,  Peckhara,  J.,  dissenting,  with 
■whom  is  the  weight  both  of  reason  and  authority  ;  C.  v.  Henry,  22  Pa. 
253  ;  2  Bish.  Cr.  Law,  §  469.     See  a7ite,  §  25. 


Sect.  313.]  FALSE  PRETENCES.  307 

guilty  of  the  same  or  a  different  crime,  would  paralyze  the  law. 
The  true  rule  is  to  punish  each  for  the  crime  he  commits. 

§  313.  Delivery  with  Knowledge.  Ordinary  Prudence.  —  If 
the  party  who  delivers  the  goods  is  not  deceived  by  the  false 
pretence,  but  is  aware  of  its  falsity,  the  offence  is  not  com- 
mitted, though  there  would  be  au  attempt  ;i  and  so,  perhaps, 
if  he  has  the  means  of  knowledge, —as  when  one  falsely 
represented  that  on  a  former  occasion  he  did  not  receive  the 
right  change,  and  thereby  obtained  additional  change.^  Yet 
if  the  change  thus  obtained  is  through  actual  deceit,  operating 
on  the  mind  of  the  party  who  delivers,  it  is  within  both  the 
letter  and  the  spirit  of  the  law,^  and  for  this  reason  and  those 
mentioned  in  the  next  paragraph  the  doctrine  of  the  last- 
mentioned  case  would  seem  unsound.* 

The  false  pretence,  it  was  once  generally  and  is  }iow  some- 
times said,  must  be  of  such  a  character  as  is  calculated  to 
deceive  a  man  of  ordinary  intelligence  and  caution.^  One 
man,  it  has  been  intimated  by  high  authority,  is  not  to  be 
indicted  because  anotlier  man  has  been  a  fool.^  But  in  the 
practical  application  of  the  rule  the  courts  seem  to  have  been 
guided,  in  determining  whether  the  false  pretence  was  an 
indictable  one,  more  by  the  fact  that  the  deceit  and  fraud 
were  intended  and  actually  accomplished,  than  that  they  were 
calculated  generally  to  deceive.  And  the  doctrine  which 
formerly  obtained,  that  if  the  party  from  whom  the  goods 
were  obtained  is  negligent,  or  fails  in  ordinary  prudence,  the 
offence  is  not  committed,  seems  now  to  be  generally  discarded, 
as  a  doctrine  which  puts  the  weak-minded  and  the  incautious 
at  the  mercy  of  rogues.     The  tendency  of  the  more  recent 

1  Reg.  V.  Mills,  D.  &  B.  C.  C.  205;  Reg.  v.  Hensler,  11  Cox  C.  C.  570; 
S.  V.  Yoling,  76  N.  C.  258. 

2  C.  V.  Drew,  19  Pick.  (Mass.)  179 ;  C.  v.  Norton,  11  All.  (Mass.) 
266. 

3  Reg.  V.  Jessop,  D.  &  B.  C.  C.  442;  2  Bish.  Cr.  Law,  §  432a. 

4  C.  V.  Mulrey,  170  Mass.  103,  49  N.  E.  91. 

5  S.  V.  Hood,  3  Peiine.  (Del.)  418,  53  Atl.  437  ;  Jones  c.  S.,  50  Ind. 
473;  C.  V.  Grady,  13  Bush.  (Ky.)  285;  S.  v.  Lawrence,  178  Mo.  350,  77 
S.  W.  497;  S.  v.  De  Hart,  6  Baxt.  (Tenn.)  222. 

«  Per  Lord  Holt,  Reg.  v.  Jones,  2  Ld.  Raym.  1013,  M.  845. 


308  CRIMINAL  LAW.  •        [Sect.  313. 

authorities  is  to  establish  the  rule  that,  whatever  tlie  pretence, 
if  it  be  intended  to  defraud,  and  actually  does  defraud,  the 
offence  is  committed.  Tlie  shallowness  of  the  pretence,  and 
its  obvious  falsity,  may  be  evidence  that  the  party  must  have 
had  knowledge,  and  so  was  not  deceived  or  defrauded  by  the 
pretence ;  but  it  is  only  evidence  upon  the  question  whether 
in  fact  the  person  parting  with  his  property  was  deceived. 
If,  in  fact,  the  party  is  induced  by  the  pretence  to  part  with 
his  money,  —  if  the  pretence  takes  effect,  —  then  the  money 
is  obtained  by  it.  Thus,  it  was  held  that  a  pretence  that 
a  one-pound  note,  reading  so  upon  its  face,  was  a  five-pound 
note,  to  a  party  who  could  read,  was  a  false  pretence.^  It  was 
also  held  an  indictable  false  pretence  to  represent  to  a  person 
who  could  not  read,  as  a  Bank  of  England  note  the  following 
instrument : 
« X5.]  Bank  op  Elegance.  [No.  230. 

"  I  promise  to  pay  on  demand  the  sum  of  live  Rounds, 
if  I  do  not  sell  articles  cheaper  than  anybody  in  the  whole 
universe. 

"Five.  For  Myself  &  Co. 

"  Jan.  1.  1850.  M.  Carroll."  2 

So  where  the  defendant  obtained  money  on  the  pretence  that 
he  could  communicate  with  spirits,  it  was  held  an  obtaining  by 
false  pretences.3  So  where  the  misrepresentation  is  in  regard 
to  the  title  to  land,  the  fact  that  the  person  deceived  could 
have  protected  himself  by  consulting  the  records  is  no 
defence.* 

1  Reg.  V.  Jessop,  D.  &  B.  C.  C.  442. 

2  Reg.  V.  Coulson,  1  Den.  C.  C.  592.  See  also  Reg.  v.  Woolley,  1  Den. 
C.  C.  559;  Elmore  v.  S.,  138  Ala.  50,  35  So.  25;  Cowen  v.  P.,  14  111.  348  ; 
Lefler  v.  S.,  153  Iiid.  82,  54  N.  E.  439  ;  S.  v.  INIiils,  17  Me.  211 ;  P.  v.  Bird, 
126  Mich.  631,  86  N.  W.  127,  M  869 ;  Oxx  d.  S.,  59  N.  J.  L.  99,  35  Atl. 
646;  P.  V.  Cole,  65  Hun  (N.  Y.),  624,  20  N.  Y.  S.  505  ;  Colbert  v.  S., 
1  Tex.  App.  314;  Harrison  v.  S.,  44  Tex.  Cr.  R.  243,  70  S.  W.  421; 
In  re  Greenough,  31  Vt.  279;  2  Bish.  Cr.  Law,  §  464;  Steph.  Dig.  Cr. 
Law,  art.  330;  Roscoe's  Cr.  Ev.  (Oth  ed.)  498. 

i  Reg.  ('.  Lawrence,  36  L.  T.  Rep.  404. 

4  Crawford  v.  S.,  117  Ga.  247,  43  S.  E.  702  ;  Keycs  v.  P.,  197  111.  638, 
64  N.  E.  730. 


Sects.  314,  315]  FALSE   PRETEN'CES.  309 

§  314.  (5. )  The  Fraudulent  Pretence  as  the  Means.  — The  false 
pretence  must  have  been  the  means  whereby  the  defrauded 
party  was  induced  to  part  with  his  property.^  It  is  not  meant 
by  this  that  the  false  pretence  should  have  been  the  sole  in- 
ducement which  moved  the  promoter.  It  is  enough  if,  co- 
operating with  other  inducements,  the  fraud  would  not  have 
been  accomplished  but  for  the  false  pretence.^  Thus  where 
the  defendant  falsely  represented  that  he  had  an  order  for 
six  thousand  cloaks,  that  he  could  pay  for  the  cloth,  and  would 
give  an  order  on  the  person  ordering  them,  the  fact  that  by 
statute  no  representation  as  to  solvency  was  binding  unless  in 
writing,  and  that  the  statement  as  to  giving  the  order  was 
purely  promissory,  did  not  invalidate  the  conviction  when  it 
appeared  that  the  prosecutor,  though  relying  on  both  these, 
also  relied  on  the  representation  that  the  defendant  had  this 
large  order.^  So  when  property  is  sold  with  a  written  cove- 
nant of  title  and  against  encumbrances,  and  at  the  same  time 
it  is  also  fraudulently  represented  verbally  that  the  property 
is  unencumbered,  the  offence  is  committed  if  the  verbal 
representation  was  the  inducement.*  It  is  doubtful,  however, 
wdiether  a  written  covenant  of  title,  or  against  encumbrances 
merely,  can  be  fairly  regarded  as  a  representation  that  the 
property  sold  is  unencumbered,  so  as  to  be  the  foundation  of 
an  indictment.  It  would  seem  to  be  only  an  agreement  which 
binds  the  party  civilly  in  case  of  breach.^ 

§  315.  Remoteness  of  the  Pretence. —  The  pretence  must  be 
reasonably  near  to  the  obtaining ;  if  too  remote,  the  crime  is 
not  committed. 

It  is  clear  that  where,  as  a  step  toward  getting  the  money, 
the  defendant  enters  into  a  contract  with  the  prosecutor  or 

1  Reg.  I'.  Mills,  D.  &  B.  205,  K.  340. 

2  Keg.  V.  Linoe,  12  Cox  C.  C.  451  ;  Tti  re  Snyder,  17  Kan.  542  ;  S.  v. 
Thatcher,  35  N.  J.  L.  445;  P.  v.  Haynes,  11  Wend.  (N.  Y.)  557;  Fay  v. 
C,  28  Grat.  (Ya.)  912. 

8  P.  V.  Rothstein,  95  App.  Div.  (N.  Y.)  292,  88  N.  Y.  S.  622.  See 
also  S.  V.  Fooks,  65  la.  196,  21  X.  W.  561. 

4  Reg.  V.  Abbott,  1  Den.  C.  C.  273;  S.  v.  Dorr.  33  Me.  498;  C.  v. 
Lincoln,  11  All.  (Mass.)  233. 

6  Rex  V.  Codrington,  1  C.  &  P.  661 ;  S.  v.  Chunn,  19  Mo.  233. 


310  CRLMINAL  LAW.  [Sect.  315. 

sells  an  article  to  him  and  he  pays  on  the  sale,  it  is  none  the 
less  an  obtaining  by  false  pretences.     The  sale  of  a  cheese  by 
false  "  tasters,"  ^  or  of  a  horse  by  false  representations  as  to  his 
sounclness,^  is  an  illustration  of  this  class  of  case.     So  where 
the  defendant  induced   the  prosecutor  by  false  pretences  to 
agree  to  build  him  a  wagon, his  purpose  being  from  the  outset 
to  get  the  wagon  by  this  means,  the  court  held  that  the  pretence 
was  a  continuing  one,  not  too  remote  and  that  he  might  right- 
fully be  convicted.^    On  the  other  hand,  where  the  defendant  by 
false  representations  secured  a  contract  for  board  and  lodging, 
and  afterward  borrowed  sixpence  of  his  landlord,  there  being 
no  new  representation,  and  no   evidence   that    he   had    this 
scheme  in  mind  when  he  contracted,  it  was  held  that  the  loan 
was  induced,  not  by  the  original  misrepresentations,  but  by 
the  fact  that  he  was  a  lodger  ;*    although  it  was  said  in  a 
later  case  ^  that  the  question  whether  the  prosecutor  was  not 
in  fact  partially  influenced  by  the  original  misrepresentations 
should  have  been  left  to  the  jury.     It  was  at  one  time  held  in 
England  that  where  the  defendant  obtained  admission  to  a 
swimming-race  by  a  false  representation,  and  won  the  prize, 
the  prize  was  not  obtained  by  false  pretences.^     This  case  has 
since  been  overruled,  tlie  court  proceeding  on  the  ground  that 
as  the  pretences  were  made  for  the  very  purposes  of  bringing 
about  the  result  actually  achieved,  and  the  intervening  chain 
of  events  was  just  that  intended  by  the  defendant  and  natu- 
rally following  from  his  act,  they  could  not  be  lield  too  remote 
to  be  a  partial  effective  ciiuse  in  obtaining  the  property."     In 
this  country,  where,  to  induce  one  to  buy  certain  shai-es  in  the 
stock  of  a  corporation,  the  defendant  falsely  stated  that  their 

1  Reg.  V.  Abbott,  1  Den.  C.  C  273. 

2  Reg.  V.  Keiirick,  5  Q.  B.  49.     See  also  S.  v.  Newell,  1  Mo.  248; 
C.  r.  Hooper,  104  Mass.  549. 

3  Reg.  V.  Martin,  L.  R.  1  C.  C.  R.  56,  K.  344.     See  also  Reg.  v.  Great- 
head,  14  Cox  C.  C.  108. 

4  Reg.  V.  Bryan,  2  F.  &  F.  567.     See  also  Reg.  v.  Gardner,  D.  &  B. 
41,  M.  870. 

^  Reg.  V.  Martin,  ante. 

6  Reg.  V.  Larner,  14  Cox  C.  C  497. 

7  Reg.  V.  Button  [1900]  2  Q.  B.  D.  597,  K.  312,  M.  873. 


Sects.  316, 317.]  FALSE  PRETENCES.  311 

purchase  was  necessary  in  order  to  participate  in  the  drawing 
of  certain  lots,  the  falsehood  was  held  too  remote.^  So  where 
the  defendant  by  false  representations  induced  a  city  to  agree 
that  judgment  should  be  entered  against  it,  and  the  judgment 
was  paid,  it  was  held  by  the  majority  of  the  court  not  to  be 
an  obtaining  by  false  pretences,^  the  dissenting  minority  adopt- 
ing the  view  taken  in  the  English  cases  above  mentioned,  that 
the  test  was  the  "  direct  connection  between  the  pretence  and 
the  payment  of  the  money."  ^ 

§  316.  Property  Obtained. — In  general,  the  property  ob- 
tained must  be  such  as  is  the  subject  of  larceny.*  The  obtain- 
ing a  credit  on  account,^  for  instance,  is  not  within  the  statute, 
unless  its  scope  is  sufficient  to  embrace  such  a  transaction ; 
nor  is  the  procurement  of  an  indorsement  of  payment  of  a 
sum  of  money  on  the  back  of  a  promissory  note,^  nor  obtain- 
ing land,"  or  board  and  lodging.^  The  statutes  of  the  several 
States  must  control  in  this  particular. 

§317.  False  Pretences.  Larceny.^ — The  distinction  between 
the  crimes  of  obtaining  money  by  false  pretences  and  larceny 
is  fine  but  clear.  If  a  person  by  fraud  induces  another  to  part 
with  the  possession  only  of  goods,  this  is  larceny ;  while  to 
constitute  the  former  offence  the  property  as  well  as  the  pos- 
session must  be  parted  with.^'^  In  larceny  the  owner  has  no 
intention  to  part  with  his  property,  and  the  thief  cannot  give 
a  good  title.  If  the  owner  delivers  his  property  under  the  in- 
ducement of  a  false  pretence,  with  intent   to  part  with  liis 

1  C.  V.  Springer,  8  Pa  Co.  Ct.  115. 

2  C.  V.  Harkins,  128  Mass.  79. 

3  See  also  Miisgrave  v.  S.,  VVi  Tnd.  297,  32  N.  E.  885;  C.  v.  Mulrey, 
170  Mass.  103,  49  X.  E.   91.     Compare  Hunter  r.  S.  (Tex.),  81   S.    \V. 

730. 

*  Reg.  V.  Robinson,  Bell  C.  C.  31,  K.  357;  P.  v.  Cummings,  114  Cal. 
437,  46  P.  284,  M.  817. 

5  Reg.  V.  Eagleton,  Dears.  515. 

6  S.  V.  Moore,  15  la.  412. 

1  S.  V.  Burrows,  11  Ired.  (N.  C.)  477. 

8  S.  V.  Black,  75  Wis.  490,  44  N.  W.  635. 

9  Ante,  §§  278,  278a. 

10  Reg.  V.  Kilham,  L.  R.  1  C.  C.  261,  C.  411,  K.  347 ;  P.  v.  Johnson, 
91  Cal.  265,  27  P.  663 ;  S.  v.  Vickery,  19  Tex.  326. 


312  CRIMINAL  LAW.  [Sect.  317. 

pi'operty,  the  person  who  obtains  it  by  fraud  may  give  a  good 
title.i  If  the  owner  is  tricked  out  of  the  possession,  and  does 
not  mean  to  part  with  the  property,  it  is  larceny ;  but  if  he 
is  tricked  out  of  both,  yet  means  to  part  with  his  property,  it 
is  obtaining  property  by  false  pretences.^ 

It  would  seem  that  the  same  principle  should  apply  even 
though  the  prosecutor  was  induced  to  part  with  the  title  to 
his  property  only  because  of  a  mistake  as  to  the  identity  of 
the  person,  if  it  was  in  fact  his  intention,  altliough  caused  by 
this  mistake,  to  pass  title  to  the  individual  then  before  him. 
It  is  an  obtaining  by  false  pretences  if  there  is  in  fact  an 
intent  to  pass  title;  and  the  crime  seems  complete  even 
though  the  mistake  may  render  the  title  voidable.^  The  same 
principle  has  been  applied  to  a  somewhat  different  case,  viz., 
where  the  defendant  obtained  goods  by  pretending  to  be  sent 
by  the  purchaser.*  This  latter  case  differs  from  the  former 
cases  in  that  there  the  prosecutor  did  in  fact  intend,  through 
error,  to  pass  title  to  the  person  to  whom  he  delivered  the 
chattel  or  money  ;  here  he  did  not  so  intend,  and  there  are 
decisions  that  in  this  latter  case  the  crime  is  larceny  and  not 
false  pretences.^ 

1  Zink  V.  P.,  77  N.  Y.  114. 

2  Reg  V.  Prince,  L.  R.  1  C.  C.  150,  11  Cox  C.  C.  193,  C.  270.  See  also 
the  very  elaborately  considered  case  of  Reg.  v.  Middleton,  L.  R.  2  C.  C. 
38,  12  Cox  C.  C.  260,  417,  1  Green's  Cr.  Law  Rep.  4,  K.  266,  M.  794. 

3  Cleasby,  B.,  in  Reg.  v.  Middleton,  ante :  Williams  v.  S.,  49  Ind.  367  ; 
contra,  S.  v.  Brown,  25  la.  561  (statutory).  See  C.  v.  Jefiries,  7  All. 
(Mass.)  548. 

4  Rex  V.  Coleman,  2  East  P.  C.  672  ;  Rex  v.  Atkinson,  2  East  P.  C.  673  ; 
Rex  V.  Adams,  Russ.  &  Ry.  225,  C.  410 ;  P.  v.  Johnson,  12  Johns.  (N.  Y.) 
292;  Lewer  v.  C,  15  S.  &  R.  (Pa.)  93.  See  Reg.  v.  Butcher,  8  Cox  C. 
C.  77. 

6  Harris  v.  S.,  81  Ga.  758,  7  S.  E.  689  ;  Collins  v.  Ralli,  20  Hun  (N.  Y.), 
246;  P.  V.  Jackson,  3  Park.  (N.  Y.)  Cr.  R.  590;  Mitchell  v.  S.,  92  Tenn. 
638,  23  S.  W.  68.  A  further  distinction  has  sometimes  been  attempted: 
viz.,  that  though  there  was  no  error  as  to  the  identity  of  the  parties,  and 
though  there  was  an  intent  to  transfer  title  to  the  person  then  present,  if 
the  intent  of  the  owner  in  transferring  it  was  to  accomplish  one  end  and 
the  defendant  took  it  for  another  and  dishonest  end,  the  title  never 
passed  inasmuch  as  there  was  no  meeting  of  minds,  Reg.  v.  Biickmaster, 
16  Cox  C.  C.  339,  C.  316.    See  also  Reg.  v.  Russet  [1892],  2  Q.  B.  D.  312, 


Sect.  318J  CHEATING.  313 


CHEATING. 

§  318.  Cheating  is  the  fraudulent  pecuniary  injury  of  an- 
other by  some  token,  device,  or  practice  of  such  a  character 
as  is  calculated  to  deceive  the  public.^  Thus,  selling  bread  for 
:he  army,  and  marking  the  weiglit  falsely  upon  the  barrels  ;2 
or  selling  by  false  weights^  or  measures;*  or  playing  with 
false  dice;^  or  arranging  the  contents  of  a  barrel  so  that  the 
top  shall  indicate  that  it  contains  one  thing,  while  in  fact  it 
contains  another  and  worthless  thing,  coupled  with  the  asser- 
tion that  the  contents  are  "just  as  good  at  the  bottom  as  at 
top";^  or  selling  a  picture  or  cloth  falsely  marked  with  the 
name  or  trade-mark  of  a  well-known  artist'  or  manufacturer  ;^ 
or  the  use  of  false  papers,^ — have  been  held  to  be  cheats  at 
common  law.  So  has  obtaining  release  from  imprisonment 
by  a  debtor  by  means  of  a  forged  order  from  the  creditor  upon 
the  sheriff.i^  So  it  has  been  held  that  obtaining  from  an  illit- 
erate person  a  signature  to  a  note  different  in  amount  from 
that  agreed  on,  by  false  reading,  is  a  cheat.^^     So,  doubtless, 

K.  349 ;  P.  V.  Miller,  169  N.  Y.  339,  62  N.  E.  418.  This  principle  would 
seem  to  be  extensive  enough  to  make  almost  every  case  of  false  pretences 
larceny ;  and  seems  opposed  to  the  great  weight  of  authority.  See,  in 
addition  to  cases  cited  ante,  Kellog  v.  S.,26  O.  St.  15  ;  Pitts  v.  S.,  5  Tex. 
App.  122. 

1  1  Hawk.  P.  C.  (8th  ed.)  318,  §  1.  See  also  Rex  v.  Wheatly,  2  Burr. 
1125,  1  Benn.  &  Heard's  Lead.  Cr.  Cas.  1,  and  notes,  as  to  distinction 
between  mere  private  cheats  and  those  which  affect  the  public  so  as  to 
become  criminal. 

2  Resp.  V.  Powell,  1  Dall.  (Pa.)  47. 

3  Young  V.  Rex,  3  T.  R.  98. 

*  Rex  I'.  Osborn,  3  Burr.  1697;  P.  v.  Fish,  4  Park.  (N.  Y.)  Cr.  R. 
206. 

5  Leeser's  Case,  Cro.  Jac.  497;  Rex  v.  Maddocke,  2  Rolle,  107. 

6  S.  V.  Jones,  70  N.  C  75. 

7  Reg.  V.  Closs,  D.  &  B.  C.  C.  460. 

8  Rex  V.  Edwards,  1  Trera.  P.  C.  103. 

9  Serlested's  Case,  Latch  202;  C.  v.  Boynton,  2  Mass.  77;  Lewis  v.  C, 
2  S.  &  R.  (Pa.)  551;  S.  v.  Stroll,  1  Rich.  (S.  C.)  244;  C.  r..  Speer,  2  Va. 
Cas.  65. 

10  Rex  V.  Fawcett,  2  East  P.  C.  862. 

11  Hill  V.  S.,  1  Yerg.  (Tenn.)  76;  1  Hawk.  P.  C.  (8th  ed.)  218,  §  1. 


314  CRIMINAL  LAW.  [Sect.  319. 

would  be  obtaining  money  by  begging,  under  the  device  of 
putting  the  arm  in  a  sling,  for  the  purpose  of  making  it  ap- 
pear that  it  had  been  injured  when  it  had  not.  It  is  an 
indictable  offence  to  maim  one's  self  whereby  the  more  suc- 
cessfully to  beg,^  or  to  disqualify  one's  self  for  service  as  a 
soldier.2 

Mere  lying  by  words,  although  successful  in  fraudulently 
obtaining  the  goods  of  another,  without  the  aid  of  some  visible 
sign,  token,  device,  or  practice,  has  never  been  held  at  com- 
mon law  to  be  a  cheating.^ 

§  319.  Token.  Device. —  A  token  is  a  thing  which  denotes 
the  existence  of  a  fact,  and  if  false,  and  calculated  to  deceive 
generally,  it  will  render  the  person  who  knowingly  uses  it  for 
the  purpose  of  inducing  the  belief  that  the  fact  denoted  does 
exist,  to  the  pecuniary  injury  of  another,  guilty  of  the  crime 
of  cheating.  A  business  card,  in  common  form,  purporting 
to  be  the  card  of  an  existing  firm,  which  is  not  genuine,  and 
asserts  as  fact  what  is  not  true,  is  a  false  token.^ 

A  forged  order  for  the  delivery  of  goods  is  held  to  be  a 
token,  and  obtaining  goods  in  this  way  a  cheat,  while  obtain- 
ing them  by  the  mere  verbal  false  representation  that  the 
person  purporting  to  be  the  signer  of  the  order  had  sent  for 
them  would  not  be  so.^  And  so  is  the  forged  check  of  another 
than  the  person  who  presents  it ;  ^  but  not,  it  is  said,  his  own 
worthless  check  upon  a  bank  where  he  has  never  had  a 
deposit,'''  this  being  merely  a  false  representation  in  writing. 
But  it  is  difficult  to  see  why  the  writing  is  a  token  in  one  case 
and  not  in  the  other.  Such  subtle  distinctions  have  now  very 
generally  been  obviated  by  statutes  making  the  obtaining  of 
money  by  false  pretences  criminal.^ 

1  1  Inst.  127. 

2  3  Burn's  J.  P.  (13th  ed.)  741,  s,  v.  Maim. 

3  Rex  v.  Grantham,  11  Mod.  222;  Rex.  v.  Osbom,  3  Burr.  1697;  C. 
V.  Warren,  6  Mass.  72;  P.  v.  Babcock,  7  Johns.  (N.  Y.)  201 ;  S.  v.  Delyon, 
1  Bay  (S.  C),  353. 

*  Jones  V.  S.,  50  Ind.  473. 

°  Rex  V.  Thorn,  C.  &  M.  206  ;  Rex  v.  Grantham,  ante. 
^  C.  V.  Boynton,  2  Mass.  77. 
'  Rex  V.  Jackson,  3  Camp.  370. 

*  See  False  Pretences. 


Sects.  320, 321]  MALICIOUS  MISCHIEF.  315 

False  personations  were  formerly  held  to  be  clieats,i  and 
even  falsehoods  as  to  personal  identity,  age,  or  condition  ;  and 
perhaps  would  now  be,'^  where  statutes  do  not  provide  for 
such  frauds.  There  seems  to  be  no  reason,  upon  principle, 
why  one  who  falsely  asserts  that  he  is  what  he  naturally  or 
by  device  falsely  appears  to  be,  should  not  be  held  guilty  of 
cheating,  as  availing  himself  of  a  visible  sign.^ 

§  320.  Swindling.  —  In  South  Carolina,  the  subject  of 
cheating  was  early  made  a  matter  of  statutory  regulation, 
providing  for  the  punishment  of  "any  person  who  shall  over- 
reach, cheat,  or  defraud  by  any  cunning,  swindling  acts  and 
devices,  so  that  the  ignorant  or  unwary  may  be  deluded 
thereby  out  of  their  money  or  property,"  under  which  obtain- 
ing horses  from  an  unsophisticated  person  by  means  of  threats 
to  prosecute  for  horse-stealing,  and  that  the  pretended  owner 
would  have  his  life  if  he  did  not  give  them  up,  was  held  in- 
dictable.* And  in  Georgia,  obtaining  money  by  false  pre- 
tences is  a  form  of  swindling.^ 

MALICIOUS     MISCHIEF. 

§  321.  Malicious  Mischief,  at  common  law,  was  confined  to 
injuries  to  personal  property.  Injuries  to  the  realty  were 
held  to  be  matters  only  of  trespass.  And  such,  perhaps,  were 
all  injuries  to  personal  property,  short  of  their  destruction.^ 
But  such  injuries,  both  to  personal  and  real  property,  came  to 
be  of  such  frequency  and  seriousness  that  they  were  made 
matters  of  special  statute  regulation,  for  the  purpose  of  pro- 
viding a  more  adequate  remedy  and  a  severer  punishment 
than  was  permitted  by  the  common  law.  And  from  the  time 
of  Henry  VTII,  down  to  the  present  time,  both  in  England 

1  Rex  v.  Dupee,  2  Sess.  Gas.  11. 

2  Rex  V.  Hanson,  Say.  229. 
8  1  Gab.  Cr.  Law,  20i. 

*  S.  V.  Vaughan,  1  Bay  (S.  C),  282. 

6  Code,  §  4587. 

«  S.  V.  Beekman,  27  N.  eT.  L.  124;  S.  v.  Manuel,  72  N.  C.  201.  But 
see  P.  V.  Smith,  5  Cow.  (X.  Y.)  258;  Loomis  v.  Edgerton,  19  Wend. 
CN.  y.)  419. 


316  CRIMINAL  LAW.  [Sect.  322. 

and  in  this  country,  a  great  number  of  statutes  have  been 
passed  touching  the  subject,  covering  such  forms  of  mischief 
as  then  existed  and  from  time  to  time  grew  out  of  the  chang- 
ing circumstances  of  society,  till  now  almost  every  form  of 
such  mischief  is  made  the  subject  of  statute  regulation,  and 
but  few  cases  arise  which  are  cognizable  only  by  the  common 
law.  Nevertheless,  the  common  law  is  looked  to,  so  far  as 
it  is  applicable,  in  aid  of  the  interpretation  of  the  statutes. 
In  many  cases  the  dividing  line  between  malicious  mischief 
and  larceny  is  very  shadowy,  as  where  there  is  a  total  de- 
struction of  the  property  without  any  apparent  advantage  to 
the  destroyer.i  Indeed,  it  has  been  held  that  the  same  facts 
might  support  an  indictment  for  either  offence.^ 

§  322.  Malice,  in  all  that  class  of  crimes  included  under 
the  general  category  of  "  malicious  mischief,"  is  not  adequately 
interpreted  by  the  ordinary  legal  definition  of  malice  ;  to  wit, 
the  voluntary  doing  of  an  unlawful  act  without  lawful  excuse.^ 
But  it  is  a  more  specific  and  less  general  purpose  of  evil.  It 
is  defined  by  Blackstone  as  a  "  spirit  of  wanton  cruelty,  or 
black  and  diabolical  revenge."^  And,  in  a  case  where  the 
prosecution  was  for  wilfully  and  maliciously  shooting  a  certain 
animal,  the  court  held  that  to  constitute  the  offence  the  act 
must  be  not  only  voluntarily  unlawful  and  without  legal 
excuse,  but  that  it  must  be  done  in  a  spirit  of  wanton  cruelty 
or  wicked  revenge.^ 

And  such  has  been  held  to  be  the  true  interpretation  of  a 
statute  which  punishes  mischief  done  "  wilfully  or  mali- 
ciously," ^  and  even  where  it  punishes  mischief  "  wilfully  "  done, 
—  the  history  of  the  legislation  of  which  the  statute  formed  a 

1  Ante,  §  290. 

2  Snap  V.  P ,  19  111.  80  ;  Parris  v.  P.,  76  111.  274 ;  S.  v.  Leavitt,  32 
Me.  183  ;  P.  v.  Moody,  5  Park.  (N.  Y.)  Cr.  R.  568;  S.  v.  Helmes, 
5  Ired.  (N.  C.)  364. 

8  Ante,  §  33. 

4  4  Bl.  Com.  244. 

5  C.  V.  Waklen,  3  Cash.  (Mass.)  558.  See  also  Duncan  v.  S.,  49 
Miss.  331  ;  Goforth  v.  S.,  8  Humph.  (Tenn.)  37  ;  Branch  v.  S.,  41  Tex. 
622. 

6  C.  V.  Williams,  110  Mass.  401. 


Sect.  322.]  MALICIOUS  MISCHIEF.  317 

part  showing  that  such  was  the  intent  of  the  legislature.^ 
Doing  or  omitting  to  do  a  thing,  knowingly  and  wilfully, 
implies  not  only  a  knowledge  of  the  thing,  hut  a  determina- 
tion, with  a  bad  intent  or  purpose,  to  do  it,  or  omit  doing  it.^ 

There  is,  undoubtedly,  in  most  cases,  an  element  of  per- 
sonal hostility  and  spite,  of  actual  ill  will  and  resentment 
toward  some  individual  or  particular  community,  and  in 
some  cases  this  is  held  to  be  essential ;  ^  but,  unless  restricted 
to  these  by  statute,  there  seems  to  be  no  reason  to  doubt  that 
wanton  cruelty  or  injury  to  or  destruction  of  property,  com- 
mitted under  such  circumstances  as  to  indicate  a  malignant 
spirit  of  mischief,  indiscriminate  in  its  purpose,  as  where 
one  goes  up  and  down  the  street  throwing  a  destructive  acid 
upon  the  clothes  of  such  as  may  be  passing  to  and  fro,  for  no 
other  purpose  than  to  do  the  mischief,  would  be  held  to 
constitute  the  offence*  Yet  it  has  been  held  that  proof  of 
malice  toward  a  son  is  not  admissible  on  an  indictment  for 
malicious  injury  to  the  property  of  the  father;^  while,  on  the 
other  hand,  it  has  been  held  that  proof  of  malice  toward  a 
bailee  is  admissible  on  an  indictment  for  injury  of  property 
described  in  the  indictment  as  belonging  to  the  bailor.^  Mere 
malice  toward  the  property  injured,  however,  as  where  one 
injures  a  horse  out  of  passion  or  dislike  of  the  horse,  is  not 
sufficient  to  constitute  the  offence ; ''  but  wanton  and  cruel 
mischief  to  an  animal  from  a  bad  mind,  without  personal  ill 
feeling,  is  malicious  mischief  ;  ^    and    so,    it  has  been  held, 

1  S.  V.  Clark,  5  Dutch.  (N.  J.)  96. 

2  C.  V.  Kneeland,  20  Pick.  (Mass.)  203  ;  Felton  v.  U.  S.,  96  U.  S.  699. 
8  Hobsotif.  S.,  44  Ala.  380;  S.  v.  Pierce,  7  Ala.  728;  S.  v.  Robinson, 

3  Dev.  &  Batt.  (N.  C.)  130;  S.  v.  Newby,  64  N.  C.  23. 

4  Mosely  v.  S.,  28  Ga  190;  Duncan  v.  S.,  49  Miss.  331;  S.  v.  Laudreth, 
2  Car.  L.  R.  446. 

5  Northcot  V.  S.,  43  Ala.  330. 

6  Stone  V.  S.,  3  Heisk.  (Tenn.)  457. 

7  2  East  P.  C.  1072  ;  Shepherd's  Case,  2  Leach  (4th  ed.),  539  ;  S.  v. 
Wilcox,  3  Yerg.  (Tenn.)  278.  Compare  Terr.  ;;.  Olsen,  6  Utah,  284, 
22  P.  163. 

8  Mosely  v.  S.,  ante ;  accord,  Terr.  r.  Crozier,  6  Dak.  8,  50  N.  W. 
124;  S.  V.  Williamson,  68  la.  351,  27  X.  W.  259  ;  S.  v.  Avery,  44  N.  H. 
392. 


318  CRIMINAL  LAW.  [Sect.  323. 

is  the  wanton  destruction  of  a  dwelling-house  ^  or  other 
building.2 

In  order  to  bring  the  act  within  the  purview  of  the  law 
against  malicious  mischief,  it  must  appear  that  the  mischief  is 
done  intentionally,  and  perhaps  it  is  not  too  much  to  say  for 
the  purpose  of  doing  it,  and  not  as  incidental  to  the  perpetra- 
tion of  some  other  act,  or  the  accomplishment  of  some  other 
purpose,  however  unlawful.  Thus,  wdiere  one  breaks  a  door 
or  window  to  gratify  his  passion  for  theft,  or  his  lust,  or  while 
he  is  engaged  in  an  assault,  or  if  the  injury  be  done  in  the 
pursuit  of  pleasure,  as  in  hunting  or  fishing,  or  for  the  protec- 
tion of  his  crops,  or  in  any  other  enterprise,  lawful  or  unlaw- 
ful, where  the  injury  is  not  the  end  sought,  but  is  merely 
incidental  thereto,  tlie  act  does  not  constitute  the  offence  of 
malicious  mischief.^  And  where  the  injury  is  done  under  a 
supposed  right,  claimed  in  good  faith,  there  is  no  malice  in 
the  sense  of  the  law.* 

There  must  be  an  actual  destruction  of,  or  injury  to,  the 
property.  Thus  merely  throwing  down  a  pile  of  goods  is  not 
within  the  statute.^ 

§  323.  Malice  Inferable  from  Circumstances.  —  Direct  proof 
of  express  malice  by  actual  threats  is  not  necessary,  but  it 
may  be  inferred  from  the  attendant  facts  and  circumstances.^ 

1  S.  V.  Gilligan,  23  R.  I.  400,  50  Atl.  844. 

2  S.  V.  Boies,  (38  Kan.  167,  74  Pac.  630. 

3  Reg.  V.  i^embliton,  L.  R.  2  C.  C.  119,  12  Cox  C.  C.  607,  2  Greene's 
C.  L.  R.  19,  C.  120,  K.  157,  M.  171;  Wright  v.  S.,  30  Ga.  325;  S.  v.  Bush, 
29  lud.  110;  S.  v.  Clark,  5  Dutch.  (X.  J.)  9G ;  Duncan  v.  S.,  49  Miss. 
331;  contra,  P.  v.  Burkhardt,  72  Mich.  172,  40  N.  W.  240;  Funderburk 
V.  S.,  75  Miss.  20,  21  So.  658. 

4  Reg.  V.  Lang-ford,  C.  &  M.  602;  S.  v.  Foote,  71  Conn.  737,  43  Atl. 
488;  Sattler  v.  P.,  59  111.  68;  Palmer  v.  S.,  45  Ind.  388;  S.  v.  F.ynn,  28 
la.  26;  S.  v.  Newkirk,  49  Mo.  84;  S.  v.  Hause,  71  N.  C.  518;  Goforth  v. 
S  ,  8  Humph.  (Tenn.)  37;  Woodward  v.  S.,  33  Tex.  Cr.  R.  554,  28  S. 
W.  204. 

5  Pollet  V.  S,,  115  Ga.  234,  41  S.  E.  606;  Rose  v.  S.,  19  Tex.  App. 
470. 

6  S.  V.  Pierce,  7  Ala.  728 ;  S.  i'.  McDermott,  36  la.  107.  Compare 
Porter  v.  S.,.  83  Miss.  23,  35  So.  218. 


Sects.  324,  325.]         RECEIVING  STOLEN  GOODS.  319 


RECEIVING    STOLEN   GOODS. 

§  324.  Receiving  Stolen  Goods,  knowing  them  to  be  stolen, 
was  originally  an  accessorial  offence,  of  which  the  receiver 
could  only  be  convicted  after  the  conviction  of  the  thief ;  but 
it  long  since  became,  both  in  England  and  in  this  country,  a 
substantive  offence,  triable  separately,  and  without  reference 
to  the  crime  of  the  principal. ^ 

Receiving  stolen  goods,  knowing  them  to  be  stolen,  for  the 
purpose  of  aiding  the  thief  in  concealing  them  or  in  escaping 
with  them,  is  as  much  an  offence  as  if  the  receiving  be  done 
with  the  hope  of  obtaining  a  reward  from  the  owner,  or  other 
pecuniary  gain  or  advantage.^  But  there  must  be  a  fraudulent 
intent  to  deprive  the  true  owner  of  his  interest  in  them.^ 

§  325.  Receiving.  —  To  constitute  one  a  receiver,  the  stolen 
goods  need  not  have  come  into  his  actual  manual  possession. 
It  is  enough  if  they  have  come  under  his  observation  and  con- 
trol, as  where  a  person  allows  a  trunk  of  stolen  goods  to  be 
placed  on  board  a  vessel  as  part  of  his  luggage.*  So  where  the 
thief  puts  money  in  the  hands  of  a  bank  teller  to  count  and 
the  defendant  then  directs  the  teller  to  credit  the  sum  to  his, 
the  defendant's  account,  the  defendant,  after  the  sum  has  been 
so  credited,  is  liable  as  a  receiver.^  But  there  must  be  such 
control  as  is  at  least  equivalent  to  constructive  possession.^ 

1  Reg.  V.  Caspar,  2  Moo.  C.  C.  101,  2  Leading  Cr.  Cas.  451,  and  note; 
Keg.  1-.  Hughes,  8  Cox  C.  C.  278;  S.  v.  Weston,  9  Conn.  527;  Loyd  i-.  S., 
42  Ga.  221 ;  C.  v.  King,  9  Cash.  (Mass.)  284;  S.  v.  Coppenburg,  2'^Strobh. 
(S.  C.)  273. 

2  Rex  V.  Richardson,  6  C.  &  P.  335,  C.  465;  Rex  v.  Davis,  6  C.  &  P. 
177,:\I.  903;  C.  r.  Bean,  117  Mass.  141,  C.  465;  P.  v.  Caswell,  21  Wend. 
(N.  Y.)  86;  P.  1-.  Wiley,  3  Hill  (X.  Y.),  194,  C.  438,  M.  904;  S.  r.  Rush- 
ing, 69  N.  C.  29;  S.  r.^Hazard,  2  R.  I.  474. 

3  Pelts  V.  S.,  3  Blackf.  (Ind.)  28;  Goldsberry  i:  S.,  66  Neb.  312,  92 
N.  W.  906;  P.  V.  Johnson,  1  Park.  (N.  Y.)  Cr.  R.  564;  Rice  v.  S.,  3 
Heisk.   (Tenn.)  215. 

4  Reg.  V.  Smith,  6  Cox  C.  C.  554;  Reg.  v.  Rogers,  37  L.  J.  n.  s.  M.  C. 
83,  C.  458;  S.  v.  St.  Clair,  17  la.  149;  S.  v.  Scovel,  1  Mill  (S.  C),  274. 

5  P.  V.  Amraon,  92  App.  Div.  (X.  Y.)  205,  87  X.  Y.  S.  358. 

6  Reg.  v.  Wiley,  4  Cox  C.  C.  412,  2  Den.  C.  C.  37,  C.  445,  K.  361, 
M.  895. 


320  CRIMINAL   LAW.  [Sects.  326,  327. 

If  one  finds  property  which  he  has  reason  to  believe  was  sto- 
len, and  seeks  to  turn  it  to  his  pecuniary  advantage,  he  may 
be  convicted  of  receiving  stolen  goods.^  The  owner  may  be  a 
receiver  as  well  as  a  thief,  if  the  goods  be  received  from  one 
who  stole  them  from  the  owner's  bailee.^  But  as  the  wife 
cannot  under  any  circumstances  steal  from  the  husband,  one 
who  receives  from  her  cannot  be  convicted  of  receiving  stolen 

goods.^ 

§  326.  When  Goods  Cease  to  Be  Stolen  Goods.  —  The  crime  can 
be  committed  so  long  only  as  the  goods  continue  to  have  the 
character  of  stolen  goods.  Where  they  have  come  back  into 
the  control  of  the  owner,  but  he,  in  order  to  detect  the  thief 
or  the  receiver,  takes  measures  to  have  them  offered  to  the 
receiver,  they  have  ceased  to  be  stolen  goods,  and  the  receiver 
cannot  be  convicted.^  Nor  are  the  goods  to  be  treated  as  sto- 
len except  in  a  jurisdiction  where  the  larceny  can  be  inquired 
into ;  consequently,  where  goods  are  stolen  in  one  jurisdiction 
and  brought  into  another,  the  receiver  cannot  be  convicted  in 
the  latter  jurisdiction.^  In  those  jurisdictions,  however,  where 
a  thief  who  himself  brings  into  the  State  goods  stolen  outside 
it  may  be  convicted  of  larceny,  one  who  receives  from  the 
thief  goods  stolen  outside  may  be  convicted  of  receiving, 
since  the  goods  continue  to  be  stolen  goods.^ 

§  327.  Knowledge.  —  The  receiver  need  not  have  been  abso- 
lutely certain  that  the  goods  were  stolen ;  it  is  enough  if  he 
had  reasonable  grounds  for  believing  them  to  be  stolen.'     And 

1  C.  I'.  Moreland,  27  Pitts.  L    J.  (Pa.)  No   45. 

2  P.  V.  Wiley,  3  Hill  (N.  Y.),  194,  C.  438,  M.  904 ;  ante,  §  155. 

3  Reg  V.  Kenny,  2  Q.  B.  D.  307,  13  Cox  C.  C.  397,  C.  359  ;  Reg.  v. 
Streeter  [1900]  2  Q.  B.  D.  601,  19  Cox  C.  C.  570,  K.  367,  M.  892. 

4  Reg.  0.  Dolan,  0  Cox  C.  C.  449,  1  Dears.  436,  C.  417;  Reg.  v. 
Schmidt,  L.  R.  1  C.  C.  C.  15,  10  Cox  C.  C.  172,  C  421,  M.  885;  U.  S.  v. 
De  Bare,  6  Biss.  (U.  S.  Dist.  Ct.)  358,  Fed.  Cas.  No.  14,935,  C.  426. 

5  Rex  V.  Prowes,  1  Moo.  C.  C.  349,  C.  379;  Reg.  v.  Madge,  9  C.  &  P. 
29,  C.  428. 

6  C.  V.  Andrews,  2  Mass.  14,  C.  436;  P.  v.  Wiley,  cmte. 

T  Reg.  V.  White,  1  F.  &  F.  665,  C  469;  Birdsong  r.  S.,  120  Ga.  850, 
48  S.  E.  329;  Huggins  v.  P.,  135  111  243,  25  N.  E.  1002;  Frank  v.  S.,  67 
Miss.  125,  6  So.  842,  M.  901;  S.  v.  Druxinman,  34  Wash.  257,  75  P.  814. 


Sects.  328,  329.]  FORGERY.  321 

if  he  had  knowledge  of  the  circumstances,  he  need  not  ha^e 
known  that  in  law  they  were  sufficient  to  constitute  larceny.^ 
But  if,  knowing  the  circumstances,  he  believed  them  not  to 
constitute  a  crime  at  all,  the  element  of  guilty  knowledge  is 
lacking,  and  the  receiver  cannot  be  convicted.^ 

The  guilty  knowledge  must  exist  at  the  time  of  taking  pos- 
session. Where  the  goods  are  received  in  good  faith  a  subse- 
quent knowledge  that  they  were  stolen  and  intent  to  keep  will 
not  constitute  the  crime  of  receiving,^  though  it  will  render 
the  defendant  liable  under  a  statute  that  also  punishes  the 
concealing  of  stolen  goods.* 

§  328.  Evidence.  —  Recent  possession,  without  any  evidence 
that  the  property  stolen  had  been  in  the  possession  of  some 
person  other  than  the  owner  before  it  came  to  the  alleged  re- 
ceiver, or  other  circumstances  to  rebut  the  presumption  of 
larceny,  is  rather  evidence  of  larceny  than  of  receiving  stolen 
goods.^  And  evidence  of  the  possession  of  other  stolen  goods 
cannot  be  given  to  show  that  the  receiver  knew  the  particular 
goods  in  question  to  be  stolen.*^ 

FORGERY. 

§  329.  Forgery  is  "  the  fraudulent  making  or  altering  of  a 
writing  to  the  prejudice  of  another  man's  right," "  —  the 
word  "writing"  including  printed  and  engraved  matter  as 
well,^  but  not  a  painting  with  the  name  of  the  artist  falsely 
signed,^  nor  a  wrapper  about  a  box  of  baking-powder,^*^     The 

Compare  Cohn  v.  P.,  197  111.  482,  64  N.  E.  306 ;  S.  v.  Goldman  (N.  J.), 
47  Atl   641. 

1  C.  ('.  Leonard,  140  Mass.  473,  4  N.  E.  96,  C.  466. 

2  Reg.  V.  Adams,  1  F.  &  F.  86,  C.  468;  C.  v.  Leonard,  ante. 

3  Pat  V.  S.,  116  Ga.  92,  42  S.  E.  389.  Compare  Reg.  i'.  Woodward, 
9  Cox  C.  C.  9.5,  C.  457,  M.  898. 

"  Rowland  v.  S.,  140  Ala.  142,  37  So.  245. 

5  Rex  V.  Cordy,  cited  in  note  to  Pomeroy's  edition  of  Archbold  Cr  Pr. 
&  PL  vol.  ii,  p.  479;  Reg.  v.  Langmead,  9  Cox  C.  C.  464. 

6  Reg.  V.  Oddy,  5  Cox  C.  C.  210,  C.  469. 

7  4  Bl.  Com.  247. 

8  C.  V.  Ray,  3  Gray  (Mass.),  441. 

9  Reg.  V.  Closs,  7  Cox  C.  C.  494,  D.  &  B.  460,  K.  184. 

10  Reg.  1-.  Smith,  8  Cox  C.  C.  32,  D.  &  B.  566,  K.  186,  M. 

21 


S22  CRIMINAL  LAW.  [Sect.  329. 

instrument  forged,  it  is  generally  held,  must  purport  upon  its 
face  in  some  way  to  prejudice  the  legal  rights  or  pecuniary  in- 
terest of  the  supposed  signer,  or  of  the  person  defrauded. 
Thus,  a  recommendation  of  one  person  to  another  as  a  person 
of  pecuniary  responsibility  may  be  the  subject  of  forgery .^ 
And  it  has  been  held  in  England  that  the  false  making  of 
a  letter  of  recommendation,  whereby  to  procure  an  appoint- 
ment as  school  teacher,^  or  as  constable,^  —  or  a  certificate  of 
good  character,  whereby  to  enable  the  person  in  whose  favor 
it  is  made  to  obtain  a  certificate  of  qualification  for  a  particular 
service,  —  is  an  indictable  forgery  at  common  law  ;  *  —  ex- 
treme cases,  no  doubt,  and  founded  perhaps  on  an  old  statute 
(33  Hen.  VIII,  c.  1,  —  not,  however,  so  far  as  appears  by  the 
reports,  referred  to  in  either  case),  whereby  cheating  by  false 
"  privy  tokens  and  counterfeit  letters  in  other  men's  names  " 
is  made  an  indictable  offence.  But  the  false  making  of  a 
mere  recommendation  of  one  person  to  the  hospitalities  of  an- 
other, with  a  promise  to  reciprocate,  has  been  held  in  this  coun- 
try to  be  no  forgery.^  Whether,  in  a  case  precisely  analogous 
to  the  English  cases  just  referred  to,  our  courts  would  follow 
them,  remains  to  be  seen.  Undoubtedly  they  would,  wherever 
a  substantially  similar  statute  may  be  found.*^  The  '•^  j^rejudice 
to  another  man's  right "  may  apply  as  well  to  the  party  imposed 
upon  as  to  the  person  whose  name  is  forged.  As  to  the  latter, 
no  doubt  the  writing  must  import  his  legal  liability  in  some 
way.  But  as  to  the  former,  if  he  is  defrauded  or  imposed 
upon,  or  the  forgery  is  made  with  fraudulent  intent,  the  act 
seems  to  come  clearly  within  the  definition.  It  is  certainly  to 
be  questioned  whether  the  law  will  allow  a  man  to  live  upon 
the  hospitalities  of  his  fellows,  which  he  has  obtained  by  forged 
letters  of  recommendation.  The  forgery  is  not  the  less  a  for- 
gery because  it  is  made  use  of  as  a  false  pretence.'^ 

1  S.  V.  Ames,  2  Greenl.  (Me.)  365. 

2  Reg.  V.  Sharmaii,  Dears.  C.  C  285. 
8  Reg.  V.  Moah,  D.  &  B.  C.  C.  550. 

4  Reg.  V.  Toshack,  1  Den.  C  C.  492. 

5  West  ('.  S.  (Fla.),  33  So.  854  ;  Waterman  v.  P.,  67  111.  9L 
«  C.  V.  Ilaitnett,  3  Gray  (Mass.),  450. 

■?  C.  V.  Coe,  115  Mass.  481,  2  Green's  C.  L.  R.  292. 


Sect.  330.]  FORGERY.  323 

§  330.  Forgery  Must  Be  Material.  —  The  false  making,  how- 
ever, must  be  of  some  instrument  having  pecuniary  impor- 
tance, or  its  alteration  in  some  material  respect. 

A  very  slight  alteration,  however,  may  be  material.  It  has 
been  held  in  England  that  the  alteration  of  the  name  of  the 
person  to  whom  a  note  is  payable,  the  alteration  being  from 
the  name  of  an  insolvent  to  a  solvent  firm,^  and  in  this  coun- 
try, that  the  alteration  of  the  name  of  the  place  where  payable, 
is  material.  And  alteration  by  erasure  constitutes  the  offence.^ 
So  does  any  other  erasure,  or  detachment  from  or  leaving 
out,  as  from  a  will,  of  a  material  part  of  the  instrument 
whereby  its  effect  is  changed.^  If  the  instrument  do  not  pur- 
port to  be  of  any  legal  force,  whether  its  invalidity  be  matter 
of  form  or  substance,  —  as  if  it  be  a  contract  without  con- 
sideration,* or  a  copy  of  a  contract,^  or  a  will  not  witnessed 
by  the  requisite  number  of  witnesses,^  or  a  bond  or  other  in- 
strument created  and  defined  by  statute,  but  not  executed 
conformably  to  the  statute,"  —  then  the  false  making  or  al- 
teration is  not  a  forgery.  The  addition,  moreover,  of  such 
words  as  the  law  would  supply,^  or  of  a  word  or  words  other- 
wise immaterial,  and  such  as  would  not  change  the  legal  effect 
of  the  instrument,  —  as  where  the  name  of  a  witness  is  added 
to  a  promissory  uote,  in  those  States  where  the  witness  is  im- 
material, —  would  not  constitute  the  offence  ;  ^  though,  doubt- 
less, in  those  States  where  such  addition  would  be  material, 
by  making,  as  in  Massachusetts,  the  security  good  for  twenty 

1  Rex  v.  Treble,  2  Taunt.  328 ;  S.  v.  Robinson,  1  Harr.  (N.  J.)  .507. 

2  White  V.  Hass,  32  Ala.  430. 

3  Combe's  Case,  Nov,  101 ;  S.  v.  Stratton,  27  la.  420. 

*  P.  V.  Shall,  9  Cow^  (N.  Y.)  778. 

5  C.  V.  Brewer,  24  Ky.  L.  R.  72,  67  S.  W.  994. 

6  Rex  V.  Wall,  2  East  P.  C.  953,  M.  937:  S.  v.  Smith,  8  Yerg.  (Tenn.) 
150. 

"  Cunningham  i-.  P.,  4  Hun  (N.  Y".),  455;  Crayton  v.  S.  (Tex.), 
80  S.  W.  839.  Compare  Pearson  v.  C,  25  Ky.  L.  R.  1866,  78  S.  W. 
1112. 

*  Hunt  V.  Adams,  6  Mass.  519. 

9  Turnipseed  v.  S.  (Fla.),  33  So.  851 ;  S.  v.  Gherkin,  7  Ired.  (X.  C.) 
206. 


324  CRIMINAL  LAW.  [Sect.  331. 

instoad  of  six  years,  such  an  alteration  would  be  licld  a  for- 
gery. Nor,  it  seems,  would  the  alteration  of  the  marginal 
embellishments  or  marks  of  a  bank-note,  not  material  to  the 
validity  of  the  note,  constitute  forgery .^ 

If  the  instrument  forged  docs  not  appear  upon  its  face  to 
have  any  legal  or  pecuniary  efficacy,  it  must  be  shown  by 
proper  averments  in  the  indictment  how  it  may  have.^ 

§  331.  Legal  Capacity.  Fictitious  Name.  —  It  is  not  essen- 
tial that  the  person  in  whose  name  the  instrument  purporting 
to  be  made  should  have  the  legal  capacity  to  act,  nor  that  the 
person  to  whom  it  is  directed  should  be  bound  to  act  upon  it, 
if  genuine,  or  should  have  a  remedy  over.^  Indeed,  the  forged 
name  may  be  that  of  a  fictitious  person,*  or  of  one  deceased,^ 
or  of  an  expired  corporation.*^  But  signing  to  a  note  the  name 
of  a  firm  which  in  fact  does  not  exist,  one  of  the  names  in  the 
alleged  firm  being  that  of  the  signer  of  the  note,  is  not  for<^ery.7 
Even  the  signing  of  one's  own  name,  it  being  the  same  as  that 
of  another  person,  tlie  intent  l)cing  to  deceive  and  defraud,  by 
using  the  instrument  as  that  of  the  other  person,^  may  consti- 
tute the  offence.  But  the  alteration  of  one's  own  signature  to 
give  it  the  appearance  of  forgery,  though  with  a  fraudulent 
intent,  is  not  forgery.^  And  where  two  persons  have  the 
same  name,  but  different  addresses,  and  a  bill  is  directed  to 
one  with  his  proper  address,  Imt  is  received  by  the  other,  who 
accepts  it,  adding  his  proper  address,  the  acceptance  is  not  a 
forgery.io 

1  S.  V.  Waters,  3  Brev.  (S.  C.)  507. 

2  P.  V.  Tomlinson,  35  Cal.  503;  S.  v.  Pierce,  8  la.  231 ;  C  v.  Ray,  3 
Gray  (Mass.),  441  ;  S.  v.  Wheeler,  19  Minn.  98;  France  v.  S.,  83  Miss. 
281,  35  So.  313;  post,  §334. 

3  s.  V.  Kimball,  50  Me.  409  ;  P.  v.  Krunimer,  4  Park.  (N.  Y.)  Cr.  R.  217. 

4  Rex  V.  Bolland,  1  Leach  C.  C.  (4th  ed.)  83  ;  Rex  v.  Marshall,  Russ. 
&  Ry.  75;  P.  v.  Davis,  21  Wend.  (N.  Y.)  309;  Sasser  v.  S.,  13  0.  4.53. 

5  Henderson  v.  S.,  14  Tex.  503. 

6  Buckland  v.  C,  8  Leigh  (Va.),  732. 

7  C.  V.  Baldwin,  11  Gray  (Mass.),  197,  M.  940. 

8  Mead  v.  Young,  4  T.  R.  28,  K.  197;  C.  v.  Foster,  114  Mass.  311;  P. 
V.  Peacock,  6  Cow.  (N.  Y.)  72. 

9  Brittain  v.  Bank  of  London,  3  F.  &  F.  465. 
i»  Rex  V.  Webb,  8  B.  &  B.  228. 


Sect.  332]  FORGERY.  325 

§  332.  The  Alteration  may  be  by  indorsing  another  name  on 
the  back  of  a  promissory  note,^  or  by  falsely  filling  up  an 
instrument  signed  in  blank,  as  by  inserting  or  changing  the 
words  of  a  complete  instrunieut,^  or  by  writing  over  a  signature 
on  a  piece  of  blank  paper,^  or  by  tearing  off  a  condition  from 
a  non-negotiable  instrument,  whereby  it  becomes  so  altered  as 
to  purport  to  be  negotiable,"*  or  by  pasting  one  word  over 
another,^  or  by  making  a  mark  instead  of  a  signature,^  or 
by  photographings  So  the  alteration  of  an  entry,  or  making 
a  false  entry,  by  a  clerk  in  the  books  of  his  employer,  with 
intent  to  defraud,  is  a  forgery.^  And  so  is  the  obtaining  by 
the  grantee  from  the  grantor  his  signature  to  a  deed  different 
from  that  which  had  been  drawn  up  and  read  to  the  grantor,^ 
or  by  the  pi-omisee  from  the  promisor  his  signature  to  a  note 
for  a  greater  amount  than  had  been  agreed  upon.^^  And  in 
England  it  has  been  quite  recently  held,  upon  much  considera- 
tion, that  where  a  man  who  had  deeded  away  his  property 
afterward,  by  another  deed  falsely  antedated,  conveyed  to 
his  son  a  part  of  the  same  property,  he  was  guilty  of  forgery  ;  ^^ 
—  a  doctrine  which,  however,  has  not  only  not  been  adopted, 
but  has  been  doubted,  in  this  country ,^2  ^^here  the  received 
doctrine  is,  that  a  writing  in  order  to  be  the  subject  of  forgery 
must  in  general  be,  or  purport  to  be,  the  act  of  another ;  or  it 
must  at  the  time  be  the  property  of  another  ;  or  it  must  be 
some  writing  under  which  others  have  acquired  riglits,  or 
have  become  liable,  and  in  which  these  rights  and  liabilities 

1  Powell  v.  C,  11  Grat.  (Va.)  822. 

2  S.  c.  Kroeger,  47  Mo.  552 ;  S.  v.  Donovan,  75  Yt.  308,  55  Atl.  611 ; 
Lawless  v.  S.,  114  Wis.  189,  89  N.  W.  891. 

3  Caulkins  r.  'Whisler,  29  la.  495. 

4  S.  V.  Stratton,  27  la.  420 ;  Benedict  v.  Cowden,  49  N.  Y.  396. 

5  S.  V.  Robinson,  1  Harr.  (X.  J.)  507. 

6  Rex  V.  Dunn,  2  East  P.  C.  962. 

'  Reg.  V.  Riualdi,  9  Cox  C.  C.  391. 

8  Reg.  V.  Smith,  L.  &  C.  C.  C.  168;  Biles  r.  C,  32  Pa.  529. 

9  S.  V.  Shurtliff,  18  Me.  368. 

10  C.v.  Sankey,  22  Pa.  390,  M.  913. 

"  Reg.  V.  Ritson,  L.  R.  1  C.  C.  200,  K.  188. 

12  2  Bish.  New  Cr.  Law,  §§  581,  585. 


326  CRIMINAL   LAW.  [Sects  333,334. 

are  sought  to  be  changed  by  the  alteration,  to  their  prejudice, 
and  without  tlieir  consent.^  Under  this  rule  it  seems  that  the 
maker  of  an  instrument  may  be  guilty  of  forgery  by  altering  it 
after  it  has  been  delivered  and  becomes  the  property  of  an- 
other ;  2  but  the  alteration  of  a  draft  by  the  drawer,  after  it  has 
been  accepted  and  paid  and  returned  to  liim,  is  no  forgery, 
but  rather  the  drawing  of  a  new  draft."  But  where  the  draft 
was  also  a  receipt,  an  alteration  of  that  by  the  drawer  of 
the  draft  so  as  to  make  it  read  as  a  receipt  in  full  was  held 
forgery.'' 

§  333.  Filling  Blanks.  —  One  may  be  guilty  of  forgery  by 
merely  filling  up  blanks  without  authority.  Thus,  if  an  em- 
ployer leaves  with  a  clerk  checks  signed  in  blank,  with  authority 
to  fill  them  only  for  a  certain  purpose,  and  he  fills  them  for 
another  purpose,  he  is  guilty  of  forgery  ;  but  if  there  is  general 
authority  to  fill  the  blanks,  it  is  no  forgery,  even  if  they  are 
filled  for  an  illegal  purpose.^ 

§  334.  Intent  to  Defraud  is  a  necessary  element  in  the  crime 
of  forgery.  But  it  is  not  necessary  that  the  fraud  should  be- 
come operative  and  effectual,  so  that  some  one  is  in  fact 
defrauded,  nor  need  the  intent  be  to  defraud  any  particular 
person,  or  other  than  a  general  intent  to  defraud  some  person 
or  other.^  Nor  is  it  necessary  that  the  fraud  should  have  been 
perpetrated  in  just  the  way  the  defendant  had  in  mind,  if  it 
does  in  fact  operate  to  the  prejudice  of  anotlier  and  there 
was  the  intent  to  defraud.'  Nor  is  the  fact  that  he  intended 
later  to  make  reparation  any  defence.^     But  there  must  be  at 

1  C.  V.  Baldwin,  11  Gray  (Mass.),  197,  M.  940;  S.  v.  Young,  46  N.  H. 
266. 

2  C.  0.  Mycall,  2  Mass.  186  ;  S.  v.  Young,  ante. 

3  P.  V.  Fitch,  1  Wend.  (N.  Y.)  198. 

4  Gordon  v.  C,  100  Va.  825,  41  S.  E.  746. 

5  Wright's  Case,  1  Lewin,  1:55,  M.  943;  P.  v.  Reinitz,  6  N.  Y.  S.  672; 
P.  V.  Dickie,  62  Ilun  (N.  Y.),  400,  17  N.  Y.  S.  51. 

6  Rex  V.  Ward,  2  Ld.  Rayra.  1461,  M.  932 ;  C.  v.  Ladd,  15  Mass.  526; 
Henderson  v.  S.,  14  Tex.  503. 

7  King  V.  S.,  43  Fla.  211.  31  So.  254  ;  Brazil  v.  S.,  117  Ga.  32,  43  S.  E. 
460. 

8  Rog.  r.  Hill,  2  Moo.  30,  K.  208;  C.  i:  Henry,  118  INIass.  460. 


Sect.  334.]  FORGERY.  •  327 

least  the  general  intent  to  defraud.  Hence  where  defendant 
forged  a  medical  di})luma  merely  for  the  purpose  of  giving 
himself  a  better  standing,  it  was  held  that  there  had  been  no 
forgery. 1  But  where  the  forging  of  the  certificate  was  to  get 
a  particular  appointment,^  or  a  payment  that  could  not  other- 
wise be  obtained,^  the  crime  was  committed.  So  an  alteration 
by  one  party  to  an  instrument,  to  make  it  conform  to  what  was 
nmtually  agreed  ujjon,  being  without  fraudulent  intent,  lacks 
the  essential  quality  of  fraud.*  So  an  endorsement  by  the 
defendant  of  the  name  of  the  payee,  when  he  believed  that  he 
had  a  right  so  to  do.^ 

The  lack  of  similitude  between  a  genuine  and  a  forged  sig- 
nature is  immaterial,  except  as  bearing  upon  the  question  of 
intent.  The  fact  of  no  resemblance  at  all  gives  rise  to  the 
inference  that  there  was  no  fraudulent  intent.  But  if  the  sig- 
nature be  proved,  the  presumption  of  fraud  arises,  whether 
there  is  any  resemblance  or  not  betw^een  the  genuine  and 
forged  signatures.** 

And  even  if  the  resemblance  be  close  and  calculated  to  de- 
ceive, the  act  may  be  shown  to  have  been  done  without  any 
fraudulent  intent."  As  the  es.sence  of  forgery  is  the  intent  to 
defraud,  tlie  mere  imitation  of  another's  writing,  or  the  altera- 
tion of  an  instrument  wdiereby  no  person  can  be  pecuniarily 
injured,  does  not  come  within  the  definition  of  the  offence. 
And  if  this  probability  of  injury  does  not  appear  on  the  face 
of  the  instrument,  it  must  be  shown  in  the  indictment,  by 
proper  averments,  how  the    injury  may  happen.     Thus,  the 

1  Reg.  V.  Hodgson,  D.  &  B.  3,  K.  202,  M.  946 ;  Maddox  v.  S.,  87  Ga. 
429,  13  S.  E.  559. 

2  Reg.  V.  Toshack,  1  Den.  C.  C.  492;  Reg.  v.  Sharman,  Dears.  C.  C. 
285. 

3  Arnold  v.  S.,  71  Ark.  367,  74  S.  W.  513. 

4  Pauli  V.  C,  89  Pa.  432. 

5  S.  V.  Bjornaas,  88  Minn.  301,  92  N.  W.  980. 

6  Mazagora's  Case,  R.  &  R.  291;  Reg.  r.  Jessop,  D.  &  B.  C.  C.  442; 
Reg.  V.  Coulson,  1  Den.  C.  C.  592;  S.  i-.  Anderson,  30  La.  Ann.  557; 
C.  1:  Stephenson,  11  Cush.  (Mass.)  481. 

■^  Reg.  V.  Parish,  8  C.&  P.  94:  Rex  r.  Harris,  7  C  &  P.  428;  C  v. 
Goodenough,  Thatch.  Cr.  Cas.  (Mass.)  132. 


g28  CRIMINAL  LAW.  [Sects.  335, 336. 

alteration  of  the  date  of  a  check  in  a  check-book  does  not  of 
itself  import  injury  to  any  one,  and  in  order  to  make  it  the 
foundation  of  an  indictment,  it  must  be  set  forth  in  the  indict- 
ment how  this  may  happen.^  Nor  does  an  alteration  of  an 
instrument  to  the  prejudice  alone  of  him  wlio  alters  consti- 
tute forgery  ;  as  when  the  holder  and  payee  of  a  promissory 
note  alters  the  amount  payable  to  a  smaller  sum.^ 

§  335.  Uttering.  —  A  forgery  is  uttered  when  there  is  an 
attempt  to  make  use  of  it  by  bringing  it  to  the  knowledge  of 
an  innocent  person.^  This  use  may  be  of  any  sort ;  pledging 
is  uttering,*  and  so  is  merely  showing  a  receipted  bill  to  gain 
credit.^     But  showing  to  an  accomplice  is  not  uttering.^ 

Where  a  forgery  is  sent  into  another  jurisdiction  by  mail  or 
other  innocent  agent,  and  is  shown  there,  there  would  seem  to 
be  an  uttering  in  both  jurisdictions.'^ 


COUNTERFEITING. 


§  336.  Counterfeiting  is  the  making  of  a  false  coin  in  the 
similitude  of  the  genuine,  with  intent  to  defraud.  It  is  a 
species  of  forgery,  and  its  distinguishing  characteristic  is  that 
there  must  be  some  appearance  of  similitude  to  the  thing 
counterfeited;^  whereas  in  forgery  no  such  similitude  is 
requisite,^  and  no  genuine  instrument  may  have  ever  existed. 
Whether  there  is  such  similitude  seems  to  be  a  question  of 
fact  for  the  jury. 

Before  the  adoption  of  the  Constitution  of  the  United  States 
the  offence  of  counterfeiting  was  punishable  in  the  several 

1  C.  V.  Mulholland  (Pa.),  5  Weekly  Notes  of  Cases,  208. 

2  1  Hawk.  P.  C.  (8th  ed.)  264,  §  4.     See  also  Counterfeiting. 
8  Reg.  V.  Radford,  1  Den.  C.  C.  59. 

4  Thurmond  v.  S.,  25  Tex.  App.  366,  8  S.  W.  473. 

5  Reg.  V.  Ion,  2  Den.  C.  C.  475. 

«  Reg.  V.  Heywood,  2  C.  &  K.  352. 

T  Reg.  V.  Taylor,,  4  F.  &  F.  511;  Reg.  y.Finkelstein,  16  Cox  C.  C.  107, 
C.  127. 

8  Rex  V.  Welsh,  1  East  P.  C.  164  ;  Rex  v.  Varley,  2  W.  Bl.  682;  U.  S. 
V.  Marigold.  9  How.  (U.  S.)  560,  per  Daniel,  J. ;  U.  S.  i'.  Morrow,  4  Wash. 
C.  Ct.  733,  Fed.  Gas.  No.  15,819. 

®  See  ante,  Forgery. 


Sect.  336.]  COUNTERFEITING.  329 

Colonies  under  the  common  law  ;  but  by  the  adoption  of  that 
Constitution  the  power  to  coin  money  was  prohibited  to  the 
States,  and  reserved  to  the  United  States.  Strictly  speaking, 
therefore,  there  is  no  such  offence  as  counterfeiting  at  common 
law  in  this  country  ;  but  it  is  wholly  an  offence  created  by 
the  statutes  of  the  United  States.  But  the  offence  is  punish- 
able as  a  cheat,  or  an  attempt  to  cheat,  by  the  States  as  well ; 
and,  in  point  of  fact,  most  of  the  States,  if  not  all,  have  stat- 
utes against  the  making  and  uttering  of  counterfeit  coin.^ 

Punished  at  common  law  as  a  cheat,  it  is  a  misdemeanor, 
unless  clearly  made  a  felony  by  statute.^ 

1  Fox  V.  Ohio,  5  How.  (U.  S.)  410;  U.  S.  v.  Mangold,  9  How.  (U.  S.) 
500;  Moore  v.  Illinoi.s,  14  How.  (U.  S.)  13.  See  also  S.  c.  McPherson,  9 
la.  53;  ]\Iartin  r.  S.,  18  Tex.  App.  224. 

2  Wilson  V.  S.,  1  Wis.  184. 


330  CRIMINAL  LAW.  [Sects.  337, 338. 


CHAPTER  IX. 

MARITIME   OFFENCES. 
§  338.   Piracy.  |  §  339.   Barratry. 

§  387.  The  common  law  punishes  certain  acts  committed 
upon  the  high  seas,  when,  if  committed  upon  land,  the  acts 
would  not  be  criminal,  or  would  be  crimes  of  a  different 
nature.  The  most  important  crimes  of  this  nature  are  piracy 
and  barratry. 

PIRACY. 

§  338.  "  Piracy  at  the  common  law  consists  in  committing 
those  acts  of  robbery  and  depredation  upon  the  high  seas 
which,  if  committed  on  the  land,  would  have  amounted  to 
felony  there."  ^  It  was  originally  punishable  at  common  law 
as  petit  treason,  but  not  as  a  felony  ;  and  later,  by  statute,^  it 
is  made  triable  according  to  the  course  of  the  common  law, 
subject  to  the  punishment,  —  capital, — provided  by  the  civil 
law.^  Under  the  law  of  nations  (which  is  part  of  the  common 
law),  it  may  be  committed  by  an  uncommissioned  armed 
vessel  attacking  another  vessel,"^  or  by  feloniously  taking  from 
the  possession  of  the  master  the  ship  or  its  furniture,  or  the 
goods  on  board,  whether  the  taking  be  done  by  strangers,  or 
by  the  crew  or  passengers  of  the  vessel.^ 

1  1  Russ.  on  Crimes,  bk.  2,  c.  8,  §  1. 

2  28  Hen.  VIII,  c.  15. 

^  1  Russ.  on  Crimes,  bk.  2,  c.  8,  §  1.  This  statute  has  been  repealed 
by  Stat.  1  Vict.  c.  88,  §  1. 

*  Savannah  Pirates,  Warburton's  Trial,  370. 

5  Attoi-ney  General  v.  Kwok-a-Sing,  L.  R.  5  P.  C.  179  ;  Rex  v.  Dawson, 
13  How.  St.  Tr.  451.  See  also  U.  S.  v.  Tully,  1  Gall.  C.  Ct.  247,  Fed. 
Cas.  No.  16,545;  U.  S.  v.  Jones,  3  Wash.  C.  Ct.  209,  Fed.  Cas.  No.  15,494; 


Sect.  339.]  PIRACY,   BARRATRY.  331 

Robbery  on  board  a  vessel  sailing  under  a  foreign  flaf>'  is 
not  piracy ,1  but  the  category  of  piratical  acts  has  been  much 
extended  by  statute.^ 

As  the  offence,  if  committed  at  all,  is  committed  on  the  high 
seas,  that  is,  out  of  the  jurisdiction  of  the  States,  the  adjudi- 
cations and  judicial  decisions  in  this  country  have  been  mostly 
confined  to  cases  arising  under  the  statutory  jurisdiction  of 
the  courts  of  the  national  government.^ 

A  pirate  is  an  outlaw,  and  may  be  captured  and  brought  to 
justice  by  the  ship  of  any  nation.^ 

A  commission  purporting  to  be  issued  by  an  unknown  gov- 
ernment, or  by  a  province  of  an  unacknowledged  nation,  affords 
no  protection ;  ^  and  in  an  action  for  the  condemnation  of  a 
vessel  engaged  in  piratical -practices  under  such  commission  it 
has  been  held  to  be  no  defence.  But  as  regards  the  personal 
liability  of  those  engaged  in  the  act  it  would  seem  clear  as  a 
matter  of  principle  that  their  belief  in  the  validity  of  their 
commission,  like  any  other  fact  bearing  on  the  question  of  good 
faith,  could  be  received  in  evidence  to  show  that  they  were 
not  in  fact  engaged  in  committing  the  depredations  piratically 
but  under  a  belief  that  by  the  laws  of  war  they  were  justified 
in  so  doing.^ 

BARRATKY. 

I  839.  Barratry  is  a  maritime  offence,  and  consists  in  the 
wilful  misconduct  of  the  master  or  mariners,  for  some  unlaw- 
ful purpose,  in  violation  of  their  duty  to  the  owners  of  the 
vessel. 

U.  S.  V.  Gibert,  2  Sumner  C.  Ct.  19,  Fed.   Cas.    No.    15,204;    U.    S>.  v. 
Pirates,  5  Wheat.  (U.  S.)  181;  The  Antelope,  10  Wheat.  (U.  S.)  66. 

1  U.  S.  V.  Palmer,  3  AVheat.  (U.  S.)  GIO. 

2  U.  S.  V.  Brig  Malek  Adhel,  2  How.  (U.  S.)  210.  On  the  question  of 
jurisdiction  of  a  crime  committed  on  board  a  foreign  vessel  see  the  very 
learned  and  eleborate  case  of  C.  r.  Macloon,  101  Mass.  1. 

3  For  the  statutory  law  upon  this  subject  see  U.  S.  Revised  Statutes, 
§  5368. 

4  The  Marianna  Flora,  11  Wheat    (U.  S.)  1. 

5  U.  S.  V.  Klintock,  5  Wheat.  (U.  S.)  144. 

«  See  U.  S.  I'.  Klintock,  ante;  The  Ambrose  Light,  27  Fed.  408,  at416. 


332  CRIMINAL  LAW.  [Sect.  339.] 

Thus,  stealing  from  the  cargo,i  wilful  deviation  in  fraud  of 
the  ovvner,^  or  delay  for  private  gain,^  or  for  any  unlawful  pur- 
pose,* have  severally  been  held  to  constitute  barratry.  So 
has  the  unlawful  resistance  to  the  search  of  a  belligerent.^ 
And  negligence  may  be  so  gross  as  to  amount  to  fraud,  just 
as  at  common  law  it  may  be  so  gross  as  to  amount  to  crimi- 
nality.^ It  is  not  necessary  that  there  should  be  fraud,  in  the 
sense  of  an  intention  on  the  part  of  the  accused  to  promote  his 
own  benefit  at  the  expense  of  the  owners,  but  any  wilful  act  of 
known  illegality,  every  gross  malversation  or  criminal  negli- 
gence in  the  discharge  of  duty,  whereby  the  owner  of  the  ves- 
sel is  damnified,  comes  within  the  legal  definition  of  barratry.' 
But  the  negligence  must  be  so  gross  as  to  be  evidence  of  a 
fraudulent  intent.*^ 

1  Stone  I'.  National  Ins.  Co.,  19  Pick.  (Mass.)  34. 

^  Vallejo  ('.  Wheeler,  Cowp.  143. 

3  Ross  V.  Hunter,  4  T.  R.  33. 

*  Roscow  ?'.  Corson,  8  Taunt.  684. 

^  Brown  v.  Union  Ins.  Co.,  5  Day  (Conn.),  1. 

6  Patapsco  Ins.  Co.  v.  Coulter,  3  Pet.  (U.  S.)  222. 

7  Lawton  v.  Sun  Mut.  Ins.  Co.,  2  Cush.  (Mass.)  500. 

8  Fayerweather  v.  Phenix  Ins.  Co.,  54  N.  Y.  Super.  Ct.  545. 


INDEX. 


INDEX. 

[references  are  to  sectioxs.] 


A. 

ABDUCTIOX, 

by  the  common  law,  what  is,  198. 

distinguished  from  kidnapping,  198. 

now  mostly  a  statutory  offence,  198. 

"  for  purpose  of  prostitution."  what  is,  198. 

forcible,  may  be  by  fraud  or  threats,  198. 

distinguished  from  seduction,  197. 

mistake  as  to  age  no  defence  to,  28,  56. 
ABORT  I  OX, 

not  an  offence  at  common  law,  200. 

consent  of  woman  no  excuse,  200. 

both  parties  to,  guilty,  200. 

attempt  to  commit,  indictable,  200. 
ACCESSORY, 

not  present  at  commission  of  crime,  70,  75. 

how  far  responsible  for  unintended  crime,  71. 

none  in  treason,  69. 

none  in  misdemeanor,  09,  72. 

in  manslaughter,  when,  73. 

mere  tacit  approval  not  enough  to  constitute,  70,  75. 

after  fact,  wife  cannot  be  to  husband,  74. 

accessory  to  an,  70. 

cannot  be  tried  till  after  principal,  70. 

See  Principal. 
ACCIDENT, 

how  far  a  defence,  28,  29,  238. 
ACCOMPLICE, 

evidence  of,  130. 

who  is,  76,  203. 

who  is  not,  76,  200. 
ACCUSATION   OF   CRIME, 

how  made.  90. 
ACQUIESCENCE, 

for  detection,  effect  of,  22. 


336  INDEX. 

[References  are  to  sections.] 

ACT, 

must  co-exist  with  intent,  5. 

effect  of  failure  of,  20. 

criminal,  what  is,  12. 
ADULTERY, 

defined,  195. 

no  offence  at  common  law,  195. 

not  everywhere  a  crime,  69. 

original  idea  of,  195. 

"open  and  notorious,"  what,  195. 

"  living  in,"  what,  195. 

killing  in,  detected  by  husband,  manslaughter,  227. 
AFFIRMATION, 

defined,  147. 
AFFRAY, 

defined,  161. 

two  persons  requisite  in  an,  161. 
AGENT   IN   EMBEZZLEMENT, 

M-ho  is,  300,  301. 
AGREEMENTS, 

what  may  amount  to  conspiracy,  186,  187. 
AIDING   AND   ABETTING, 

one  guilty  of,  is  principal,  69. 
ALLEGATIONS   IN   INDICTMENT, 

what  are  necessary,  98. 
ALLEGIANCE   TO   GOVERNMENT, 

who  owe,  137. 
AMENDMENT   OF   INDICTMENT, 

how  made,  91. 
ANIMALS, 

cruelty  to,  when  criminal,  15. 
APOSTASY, 

not  an  Offence  in  this  country,  193. 
ARRAIGNMENT,  92. 
ARREST, 

when  may  kill  to  make,  59. 

when  may  kill  to  resist  unlawful,  61. 

how  made,  87. 

without  warrant,  88. 

when  legal  and  when  not,  161,  239. 

unlawful,  as  provocation,  229. 

resistance  to,  as  affecting  degree  of  homicide,  229. 
ARSON, 

defined,  250. 

"  dwelling-house,"  meaning  of,  in,  251. 

ownership  in,  what,  252. 

occupation  in,  what,  253. 


INDEX.  337 

[References  are  to  sections.] 

ARSOX  —  Continued. 

motive  a'ld  intent  in,  254. 

"  burnino;-  "  defined,  255- 
ASPORTATIOX, 

necessary  for  larceny,  277. 
ASSAULT, 

defined,  205. 

used  in  two  senses,  213. 

force  in,  must  be  unlawful,  207. 

fraud  vitiates  consent  in,  209. 

consent  to,  how  far  an  excuse,  208,  209. 

consent  to,  distinguished  from  submission,  209. 

degree  of  force,  necessary,  210. 

application  of  force,  mode  of,  in,  210,  211. 

imprisonment  not  necessarily  an,  211. 

fear  supposes  force  in,  212. 

threat  of  personal  injury  in,  212. 

mei'e  words  no  justification  for,  212. 

threat,  but  no  intent  to  injure  in,  21-3. 

self-defence  against,  how  far  permissible,  63,  214. 

in  defence  of  property,  when,  66,  67,  215. 

accidental,  216. 
ASSEMBLY, 

unlawful,  what,  165. 
ATTEMPT, 

criminal,  defined,  18,  183-185. 

offer  to  bribe  an,  140,  185. 

offer  to  accept  a  bribe  an,  140,  185. 

distinguished  from  preparation,  183. 

distinguished  from  solicitation,  185. 

impossible  of  success,  184. 

desisting  before  crime  completed,  184  a. 

relation  of,  to  conspiracy,  186. 
ATTORNEY, 

duty  of  prosecuting,  before  grand  jury,  91. 

punishable  as  an  officer  of  court,  155  a. 
AUTHORIZATION   OF   ACT   BY   GOVERNMENT, 

how  far  valid,  60. 
AUTREFOIS   CONVICT  AND   ACQUIT, 

plea  of,  117  ff. 

B. 

BAIL,  59. 
BARRATRY, 

(as  a  common  law  offence)  defined,  143. 
is  a  habit,  143. 

22 


338  INDEX. 

[References  are  to  sections.] 
BARRATRY  —  Continued. 

by  whom  it  may  be  committed,  143. 

common  law  of,  not  generally  adopted  in  this  country,  145. 
BARRATRY, 

(as  a  maritime  offence)  defined,  339. 

fraud,  what  amounts  to,  in,  339. 
BATTERY, 

defined,  205,  206. 
BELIEF, 

false  oath  as  to,  may  amount  to  perjury,  150. 
BENEFIT  OF   CLERGY, 

what,  95. 

to  public  no  defence  to  criminal  act,  26. 
BESTIALITY, 

defined,  203. 
BETTING, 

larceny  in  pretended,  278. 
BIGAMY, 

defined,  196. 

gist  of  the  offence,  196. 

effect  of  divorce  in,  196. 

may  be  unintentional,  57,  196. 
BILL   BECOMES   INDICTMENT, 

when,  91. 
BLASPHEMY, 

defined,  194. 

criminal  at  common  law,  15. 

instances  illustrative,  194. 

a  form  of  nuisance,  181. 
BODY, 

exhuming,  criminal,  15. 
BOYCOTTING, 

indictable  when,  187. 
BRAWLER, 

common,  181. 
BRIBERY  AT   COMMON   LAW, 

is  criminal,  13. 

defined,  140. 

an  offer  to  bribe,  or  accept  a  bribe,  an  attempt,  140, 185. 

modern  tendency  to  extend  the  scope  of,  illustrations,  140. 

payment  of  expenses,  how  far,  140. 
BUGGERY, 

defined,  203. 

not  an  oftence  in  some  States,  203. 

not  regarded  as  criminal  by  some  Christian  nations,  203. 

penetration  only  necessary  to,  203. 

must  he  per  anum,  203. 


INDEX.  339 

[References  are  to  sections.] 

BURDEX   OF   PROOF, 
in  criminal  cases,  12-i. 
BURGLARY, 

detitied,  256. 

breaking-,  actual,  in,  257. 

breaking,  constructive,  in,  258. 

effect  on,  of  consent,  2.")9. 

must  be  of  some  part  of  liouse,  260. 

may  consist  of  interior  breaking,  261 . 

breaking  out,  262. 

entry  in,  what,  263. 

can  be  only  of  occupied  house,  264. 

what  is  a  dwelling-house  in,  265. 

time,  effect  of,  in,  266. 

intent  in,  207. 

statutory  breakings,  268. 

effect  on,  of  admission  by  servant,  22. 
"BURNING," 

defined,  255. 
BY-LAWS, 

require  intent  when,  55. 

c. 

CARELESSNESS, 

criminal,  232,  233. 
"CASTLE," 

defence  of,  67,  217  ff. 
CHALLENGE, 

to  fight  a  duel,  indictable,  185. 

inviting  a,  indictable,  185. 
CHAMPERTY, 

defined,  143. 

modern  tendency  to  restrict  the  common  law  definition  of,  145. 
"  CHARACTER  UNCHASTi:," 

and  "  good  repute  for  chastity,"  distinguished,  197,  198. 

evidence  of,  129. 
CHASTITY, 

burden  of  proof  of,  in  seduction,  197. 
CHEATING, 

defined,  318. 

mere  lying  insufficient  in,  318. 

must  be  token  or  device,  17,  319. 

swindling,  form  of,  320. 
CHILD, 

unborn,  not  subject  of  homicide,  219. 


340  INDEX. 

[References  are  to  sections.] 

CHRISTIANITY, 

part  of  the  common  law,  2,  194. 

crimes  ag  liust,  192  ff. 
CHOSES  IN  ACTION. 

larceny  of,  272. 
CLERGY, 

benefit  of,  what,  95. 
CLERK, 

in  embezzlement,  who  is,  300. 
CODES, 

repeal  of  common  law  by,  2. 
COERCION, 

excuses  crime  when,  37,  68,  69. 
COHABITATION, 

lascivious,  what,  15,  201. 
COMMITMENT,  89. 
COMMON  LAW, 

supplies  punishment  when  not  otherwise  provided,  3. 
COMMON  SCOLDS,  181. 
COMPLAINT, 

what  is,  90. 

evidence  of  fresh,  131. 
COMPOUNDING, 

itself  a  crime,  23  c. 
CONDITIONAL  PARDON,  97. 
CONDONATION, 

effect  of,  20,23  a,  184  a. 

by  public  officers,  23  b. 
CONFESSION, 

when  admissible  in  evidence,  128. 

what  is,  128. 
CONFLAGRATION, 

destruction  of  property  to  stay,  61. 
CONSENT, 

prevents  act  from  being  crime  when,  21,  22  a,  23. 

distinguished  from  acquiescence,  22. 

when  invalid,  23,  208. 

by  third  person,  of  no  effect,  22  a. 

whetlier  necessary,  in  seduction,  197. 

obtained  by  fraud  or  fear,  nugatory,  209. 

and  submission  distinguished,  23,  209,  244. 

in  abortion  no  excuse,  200. 

in  buggery  no  excuse,  203. 

in  burglary  no  excuse,  259. 


INDEX.  341 

[References  are  to  sections.] 

CONSPIRACY, 

defined,  186 

relation  of,  to  attempt,  186. 

various  elements  in,  186. 

what  amounts  to,  187. 

agreement  the  gist  of,  188. 

merger  in  substantive  felony  when  committed,  188. 

aliter  as  to  misdemeanor,  188. 

intent  necessary  in,  189. 

all  participators  in,  equally  guilty,  190. 

effect  of  local  laws  on  doctrine  of,  191. 
CONSTRUCTION  OF  CRIMINAL  AND  PENAL  LAW, 

strict,  12.5. 
CONSTRUCTIVE  INTENT,  28,  34. 
CONTEMPT  OF   COURT, 

punishable  by  indictment,  and  summarily  by  the  court,  154. 

by  officers  of  coui-t,  1.5.5 «. 

what  acts  constitute,  1.55. 

of  process,  156. 

of  jury,  157. 

proceedings  upon,  1-58. 

only  where  court  has  jurisdiction,  156. 
CONTINUING  CRIME, 

jurisdiction  of,  80. 
CONTRACTS, 

allegation  of,  in  indictment,  108. 

breach  of,  when  may  involve  criminal  responsibility,  30. 
CONTRIBUTORY  NEGLIGENCE, 

effect  of,  24. 
CONVICTION  OF  LESSER  OFFENCE,  9:3. 
CORPORATIONS, 

indictable,  when,  38. 
CORPSE, 

casting  in  river,  criminal,  15. 
CORPUS  DELICTI, 

necessity  of  proof  of,  126,  128. 
CORRUPTION, 

in  public  office  criminal,  13. 

of  morals,  act  tending  to,  criminal,  15. 
COUNTERFEITING, 

defined,  336. 

and  forgery  distinguished,  336. 

how  punishable.  336. 
COUNTS  OF  INDICTMENT, 

joinder  of,  98,  111-113. 


342  INDEX. 

[References  are  to  sections.] 

COURT, 

is  custos  morum  popuU,  15. 
CRIME, 

defined,  1. 

by  whom,  defined,  2. 

how  prosecuted  and  punished,  3. 

difference  between  wrong  and,  6. 

what  acts  amount  to,  1"2. 

not  affected  by  later  condonation  or  restitution,  23  a. 

none  at  common  law,  under  United  States  government,  4, 

elements  of,  5,  99. 

what  not  indictable  or  punishable,  8. 

moral  obliquity  not  essential  to  constitute,  7. 

in  one  jurisdiction  not  necessarily  crime  in  another,  7. 

jurisdiction  of  continuing,  80. 

ignorance  of  fact,  when  no  excuse  for,  51,  53. 

when  under  indictment  for,  conviction  may  be  had  of  another,  112. 

when  several  commit,  all  princi[)als,  69. 

against  two  sovereignties,  S3,  119. 

duty  to  suppress,  59,  65. 

locality  of,  79. 

on  the  high  seas,  jurisdiction  of,  78,  338. 
CRIMES, 

classification  of,  9,  10. 
CRIMIXAL, 

who  may  become  a,  35. 
CRIMINAL  CAPACITY, 

infants,  presumption  as  to,  36. 

married  women,  presumption  of  coercion,  when,  37. 

of  corporations,  38. 

insanity,  as  affecting,  S9-46. 

drunkenness  as  affecting,  46-49. 

burden  of  proof  as  to,  36,  47  b. 

of  boy  under  fourteen  to  attempt  rape,  184. 
CRIMINAL  CASE, 

test  of,  124. 
CRIMINAL  INTENT, 

when  not  necessary  to  constitute  crime,  53. 
CRIMINAL  LAW, 

effect  on,  of  statutes,  2,  3.  10. 

may  supply  punishment  for  statutory  crimes,  3. 

construed  strictly  in  favor  of  accused,  11,  125. 
CRIMINAL  NEGLIGENCE, 

what  is,  31, 

may  supply  place  of  general  criminal  intent,  29. 

not  so  as  to  specific  intent,  34. 


INDEX.  343 

[References  are  to  sections.] 

CRIMINAL  RESPONSIBILITY, 

effect  on,  of  mistake  of  fact,  50, 

effect  on,  of  mistake  of  law,  51,  52- 

See  Criminal  Capacity. 
CRIMINALITY, 

test  of,  6. 
CRIMINALS, 

classification,  69-76. 

CRUELTY  TO  ANIMALS, 
when  criminal,  15. 

CULPABLE  NEGLIGENCE, 

what  is,  31. 
CUMULATIVE  SENTENCE,  115. 

CURSING, 

habitual,  181. 

CURTILAGE, 

meaning  of,  251. 

CUSTODY  AND  POSSESSION, 

distinguished,  299. 

taking  of,  not  larceny,  279. 
CUSTOMS, 

local,  influence  of,  on  law,  2,  191. 
Custos  morum  populi, 

court  is,  15. 


D. 


DANGEROUS  DRIVING, 

indictable,  13. 
DECENCY, 

offences  against,  15,  192  ff. 
DECLARATIONS, 

dying,  132. 

DEEDS, 

larceny  of,  273. 
DEFENCE, 

of  person  or  property,  when  justifiable,  63. 

of  one's  self,  61,  68. 

of  another,  65. 

of  property,  66,  67. 
DEFENDANT, 

testimony  of,  127. 


344  INDEX. 

[References  are  to  sections.] 

DEFENDANTS, 

joinder  of,  116. 
DEGREE  OF  STATUTORY  CRIME, 

how  determined,  10. 

if  doubtful,  should  be  in  favor  of  accused,  II. 

DELIRIUM  TREMENS, 

its  effect  on  criminal  responsibility,  48. 

DESCRIPTION  IN  INDICTMENT, 

■what  sufficient,  106. 
DETAINER, 

forcible,  what,  168. 

DETECTION, 

effect  of  acquiescence  for,  22. 

DETECTIVE, 

effect  of  instigation  by,  on  criminal  act,  22,  22  a. 

DEVICE  IN  CHEATING, 

what,  319. 
DIPSOMANIA,  48. 
DISEASE, 

intentional  communication  of,  criminal,  16. 

DISORDERLY  HOUSE, 

doctrine  of  coercion  not  applied  to  keeping  of,  37. 
DIVORCE, 

remarriage  after,  when  bigamy,  196. 
DOCUxMENTS, 

larceny  of,  272. 
DOUBT, 

reasonable,  when  prisoner  to  have  benefit  of,  47,  124,  125. 

DRUNKARD, 

common,  181. 
DRUNKENNESS, 

in  general  no  excuse  for  crime,  46. 

right  of  self-defence,  how  affected  by,  47  a. 

how  malice  and  intent  affected  by,  47-49. 

burden  of  proof  as  to,  47  h. 

involuntary,  releases  from  responsibility,  49. 

when  criminal,  15. 

DUCKING-STOOL, 

punishment  by,  not  recognized  in  some  States,  2. 

DUPLICITY, 

of  indictment.  111. 
DUTY, 

public,  what  is,  30. 


INDEX.  345 

[References  are  to  sections.] 

"  DWELLING-HOUSE," 

in  arson,  meaning  of,  251-253. 
"  malicious  burning  "  of,  252. 
meaning  of,  in  burglary,  260,  261. 
defence  of,  67,  249  ff. 
DYING  DECLARATIONS, 
evidence  of,  132. 


E. 

EAVESDROPPING, 

a  form  of  nuisance,  171,  181. 
ECONOMY, 

public,  offences  against,  163  ff. 
ELECTION, 

fraudulent  voting  at,  13. 
EMBEZZLEMENT, 

not  an  offence  at  common  law,  298. 

formerly  only  a  bi-each  of  trust,  7. 

distinguished  from  larceny,  how,  298,  299. 

breach  of  trust,  298,  302. 

made  criminal  by  statute,  17. 

of  public  moneys,  13. 

clerk,  servant,  agent,  officer,  meaning  of,  in,  300,  301. 

employment,  what,  in,  302. 

what  may  be  embezzled,  303. 

intent  to  defraud  essential,  304. 
EMBRACERY, 

defined,  146. 
ENFORCEMENT  OF  LAW, 

act  done  by  way  of,  59. 
ENGROSSING,  FORESTALLING  AND  REGRATING, 

what,  177. 
ENTRY, 

forcible,  what,  168. 
ESCAPE, 

defined,  161. 
ESCAPING  CRIMINAL, 

when  killing  of,  lawful,  59. 
EVIDENCE, 

in  criminal  cases,  124  ff. 

burden  of  proof,  124. 

of  corpus  delicti,  126,  128. 

of  defendant,  127. 

of  accomplice,  130. 


346  INDEX. 

[References  are  to  sections.'] 

EVIDENCE  —  Continued. 

confession  of  defendant  as,  128. 

of  character,  129. 

of  fresh  complaint,  131. 

of  dying  declarations,  132. 

of  receiving  stolen  goods,  328. 

in  perjury,  152. 

in  subornation  of  perjury,  153. 

in  treason,  139. 

of  insanity,  burden  of  proof,  45,  124. 

of  an  accomplice,  130. 
EX  POST  FACTO  LAW, 

what,  3. 
EXECUTION  OF  LAW, 

act  done  in,  59. 
EXHIBITION, 

maintaining  indecent,  criminal,  15. 
EXPLOSIVES, 

keeping  of,  may  be  indictable,  14. 
EX  POST  FACTO  LEGISLATION, 

forbidden,  3. 

defined,  3. 
EXPOSURE, 

indecent,  15. 
EXTORTION, 

defined,  141. 

must  be  intentional,  141. 
EXTRADITION, 

general  purpose  of,  84. 

foreign,  85. 

interstate,  86. 


F 

FACT, 

ignorance  of.     See  Ignorance. 
FAILURE, 

of  criminal  act,  effect  of,  20. 
FALSE  IMPRISONMENT, 

what,  240. 
FALSE  PRETENCES, 

what,  305. 

made  criminal  by  statute,  17. 

none  of  statements  in  fact  true,  5. 

cheating  by  words  or  acts,  305. 


INDEX.  347 

[References  are  to  sections.] 
FALSE   VRETE^CES—  Continued. 
implied  representations  in,  309. 
essential  elements  of,  305. 
opinions,  how  far  included  in,  306. 
trade  puffing  not,  308. 
what  may  be  subject  matters  of,  307. 
intent  to  defraud  necessary,  310. 
and  actual  fraud,  311. 

must  be  made  before  obtaining  goods,  306,  311. 
where  both  parties  cheat,  how,  25,  312. 
no  deceit,  no  cheating,  313. 
imprudence  in  cheated  party  immaterial,  313. 
whether  must  be  sole  means  of  deceiving,  314. 
remoteness  of  pretence,  315. 
property  subject  matter  of,  316. 
and  larceny  distinguished,  317. 

FEAR, 

when  it  amounts  to  force,  198,  199,  209,  212,  213,  240,  243,  247. 

putting  in,  what,  247. 
FELONIES, 

joinder  of,  in  indictment,  114. 
FELONY, 

what,  10. 

right  and  duty  to  prevent,  59,  239. 

how  far  doctrine  of  coercion  applicable  to,  37. 

when  may  kill  to  prevent,  64,  65. 

arrest  of  one  guilty  of,  59. 
"  FIGHTING," 

meaning  of,  164. 

and  self-defence  distinguished,  164. 
FORCE, 

when  lawful,  208. 

when  fraud  or  fear  supplies  the  place  of,  198,  199,  209-213,  240, 
243,  247.  248,  277. 

when  not,  197. 

and  violence  in  rape,  243. 
FORCIBLE  ENTRY  AND  DETAINER, 

defined,  167. 

criminal  at  common  law,  17. 

degree  of  force  in,  168. 

what  may  be  entered  or  detained,  169. 
FORCIBLE  TRESPASS, 

to  personal  property,  170. 
FOREIGNER, 

not  excused  for  ignorance  of  law,  51. 

when  may  be  guilty  of  treason,  137. 


3i8  INDEX. 

[References  are  to  sections.] 

FORESTALLING, 

what,  177. 
FORGERY, 

defined,  329. 

must  be  of  a  material  matter,  330. 

may  be  of  fictitious  name,  33L 

alterations  by  addition  or  erasure  construed,  331,  332. 

signing  one's  own  name  may  be,  331. 

filling  blank  may  be,  333. 

must  be  intent  to  defraud,  334. 

lack  of  similitude  in,  immaterial,  334. 

uttering,  335. 
FORGIVENESS   BY   INJURED   PARTY, 

effect  of,  21. 
FORMER   ACQUITTAL   AND  CONVICTION, 

plea  of,  117  ff. 
FORNICATION, 

defined,  202. 

offence  of  ecclesiastical  origin,  202. 

pure  and  simple,  not  an  offence  at  common  law  in  this  country,  202. 
FRAUD, 

when  it  is  equivalent  to  force,  198,  199,  208,  209,  2i0,  277. 

when  not,  243. 

when  it  excuses  crime,  37,  49,  69. 

what  amounts  to,  in  barratry,  339. 
FRESH   COMPLAINT,  131. 
FRIGHTENING  PERSONS, 

may  be  indictable,  16. 
FUGITIVES  FROM  JUSTICE, 

surrender  of,  84-86. 


G. 


GAME, 

injury  in  course  of,  23,  238. 
GOODS, 

personal,  subjects  of  larceny,  271,  275. 
GOVERNMENT, 

offences  against,  13,  133  ff. 
GRAND  JURY, 

how  constituted,  91. 
GUILTY   PARTICIPATION, 

by  injured  party,  25. 


INDEX.  349 


H. 

[References  are  to  sections.] 

HATRED, 

-distinguished  from  malice,  33. 
HEALTH, 

public,  offences  against,  14,  163  S.. 
HIGH  SEAS, 

jurisdiction  over,  78,  338. 

within  three-mile  limit,  77. 
HIGHWAY, 

obstructing,  when  indictable,  14,  179. 
HOMICIDE, 

evidence  of  dying  declarations  in,  132. 

defined,  218. 

may  be  lawful,  when,  218. 

justifiable  and  excusable,  when,  218. 

suicide,  form  of,  219. 

consent  no  defence,  23. 

must  be  of  human  being,  born  and  alive,  219. 

death  must  be  within  a  year  and  a  day,  219. 

defendant's  act  must  be  the  legal  cause  thereof,  24,  30,  230. 

murder,  highest  degree  of,  220. 

malice  in,  express  and  implied,  34,  221. 

malice  aforethought  and  presumptive,  222-224. 

manslaughter,  degree  of,  226. 

accidental,  30,  237. 

in  prevention  of  felony,  239. 

unintended,  when  criminal,  28,  30,  34. 

See  Murder  and  Manslaughter. 
HOUSE, 

every  man's,  his  castle,  meaning  of,  67,  215. 
HUSBAND, 

accessory  to  wife,  and  wife  to  husband,  when,  74. 

coercion  of  wife  by,  37. 

duty  to  provide  for  wife,  30. 

right  of  marital  control,  62. 

how  far  larceny  by  one  from  other,  287. 


I. 

IDEM  SONA  NS,  103,  107. 
IDENTICAL   OFFENCES, 

what  are,  120. 
IDIOTS   IRRESPONSIBLE   FOR   ACTS. 

when,  39,  40. 


850  INDEX. 

[References  are  to  sections.] 

IGXORAXCE, 

of  fact,  when  no  excuse  for  crime,  50,  57. 
of  law  no  excuse  for  crime,  51-57. 
may  show  lack  of  specific  intent,  52. 

IMMORAL    ACT, 

one  engaging  in,  takes  risk  of  criminality,  28,  56. 

IMMORALITY, 

when  criminal,  15,  181. 

IMPRISONMENT, 

what,  162. 
false,  240. 
on  the  high  seas,  60. 

IMPUTED   MALICE,  223. 

INDECENCY, 

when  criminal,  15,  201. 

INDECENT, 

exhibition,  criminal,  15. 
proposal,  libel,  172. 

INDICTMENT, 
what  is,  90. 
how  bill  becomes,  91. 
arraignment  on,  92. 
quashing,  91. 
amendment  of,  91. 
form  of,  98. 
requisites  of,  98. 
particularity,  100. 
surplusage,  101. 
variance,  101,  103,  107. 
laying  jurisdiction,  102. 
names  in,  103. 
time,  104. 
place,  105. 
description  in,  106. 
allegation  of  words  in,  107. 
allegation  of  contract  or  writing  in,  108. 
upon  statute,  109. 

statutory  form  of,  whether  constitutional,  110. 
joinder  of  counts  in,  98,  111-113. 

of  offences  in,  114. 

of  defendants  in,  116. 
conviction  of  lesser  offence  than  charged  by,  112. 
cumulative  sentence  on,  115, 
duplicity  in,  111. 


INDEX.  351 

[References  are  to  sections.] 

INDIVIDUAL, 

not  always  protected  by  public,  17. 
INDIVIDUALS, 

offences  against,  16. 
INFANTS, 

when  criminal  and  when  not,  36. 

when  failure  to  provide  for,  criminal,  30. 
INFECTION    OF   DRINKING    WATER, 

criminal,  16. 

INFORMATION, 

what  is,  90. 

INSANE    PERSON, 

cannot  be  tried  or  punished,  44. 
INSANITY, 

defined,  39-43. 

knowledge  of  right  and  wrong  as  test  of,  40. 

irresistible  impulse  as  element  of,  41. 

emotional,  what,  42. 

moral,  43. 

prevents  trial  and  punishment,  44. 

proof  of,  45. 

relation  to  delirium  tremens,  48. 

INSTRUMENTS   IN   WRITING, 

larceny  of,  272. 
INTENT, 

criminal,  how  far  necessary  to  constitute  crime,  26,  53,  55. 

a  question  of  interpretation  in  statutory  crimes,  54. 

distinguished  from  malice,  26. 

distinguished  from  attempt,  183. 

distinguislied  from  motive,  26,  -32,  254. 

presumed  from  unlawfulness  of  act,  when,  27. 

constructive,  28,  34. 

■when,  must  be  proved,  27,  32,  200. 

may  be  supplied  by  negligence,  29. 

how  affected  by  drunkenness,  47,  267. 

to  defraud,  170,  334. 

and  act  must  co-exist,  5. 

constructive,  28. 

specific,  32,  34. 

in  extortion,  141. 

in  statutory  crimes,  when  necessary,  52-57. 

attributable  to  corporations,  38. 

See  CuiMiNAL  Capacity. 

INTERNATIONAL   LAW, 

offence  against,  338. 

part  of  the  common  law,  2. 


352  INDEX. 

[References  are  to  sections.] 

INTERPRETATION, 

rules  of,  125. 
INTOXICATION 

See  Drunkenness. 
INVASION, 

entry  on  land  to  repel,  61. 
IRRESISTIBLE  IMPULSE,  41. 


J. 

JEOPARDY, 

no  one  to  be  put  twice  in,  meaning  and  scope  of  rule,  117-122. 

JOINDER, 

of  counts  in  indictment,  111-115. 
of  defendants,  116. 
"JUDICIAL   PROCEEDING," 

what,  U9. 
JURISDICTION, 

territorial  limits  of,  77. 

all  persons  in,  subject  to,  51, 137. 

personal,  77  a. 

over  accessory  in  one  State  to  crime  in  another,  70. 

on  high  seas,  78. 

in  continuing  crime,  80,  296. 

where  force  set  in  motion  outside  State,  79. 

where  force  applied  outside  State,  79,  81. 

of  United  States  courts,  82. 

concurrent  jurisdiction,  77  rt.  83. 

over  person  forcibly  brought  in  State,  85. 

none  by  consent  of  parties,  77. 

of  a  county,  what  included  in,  77,  SO. 

authorization  by  government,  ineffective  beyond,  60. 

over  receiver  of  stolen  goods,  75,  326. 

over  pirates,  78,  338. 

over  marriages  of  citizens  outside  the  State,  196. 
JURY, 

grand,  91. 

libels  against,  157. 
JUSTIFICATION, 

what  is,  58. 

enforcement  of  law,  how  far  a,  59. 

authorization  by  government,  when  a,  60. 

authority  of  master,  when  a,  62. 

self-defence,  when  a,  64. 


INDEX.  353 

[References  are  to  sections.] 

JUSTIFICATIOX  —  Continued. 
defence  of  others,  when  a,  6.5. 
defence  of  property,  when  a,  66. 
defence  of  "  castle  "  when  a,  67. 
necessity,  how  far  a,  68. 
burden  of  proof  of,  67  a. 


K. 

KIDXAPPING, 

of  defendant  in  foreign  country  no  defence,  85. 

and  abduction  distinguished,  198. 

defined,  190. 
KNOWLEDGE, 

of  the  law,  when  presumed,  51. 

when  not,  52. 

carnal,  what,  242. 


L. 

LARCENY, 

distinguished  from  embezzlement,  284,  299. 

false  pretences,  278,  317. 

defined,  270. 

petil  and  grand,  270. 

simple,  compound,  and  aggravated,  270,  293. 

conversion,  of  realty  into  chattels,  275. 

taking  and  carrying  away  in,  277. 

by  trick,  277  a,  278  a. 

taking,  degree  of  force  necessary  in,  277. 

not,  when  both  possession  and  title  obtained,  278. 

servant,  larceny  from,  by  trick,  278  a. 

not,  when  only  custody  taken,  279. 

possession,  what  amounts  to  a  taking  of,  280. 

taking  by  finding  in,  280. 

taking  of  property  left  by  mistake,  281. 

taking  of  property  given  by  mistake,  282. 

taking  by  servant  or  bailee,  283,  284. 

temporary  delivery  upon  condition  in,  285. 

taking  by  bailee  for  special  purpose,  285  a. 

taking  by  owner  in,  286. 

taking,  what  is  felonious,  288,  289. 

taking  by  wife  from  husband,  not,  287. 

intent  to  steal,  what  is,  288. 

non-felonious  taking,  may  have  larceny  based  on,  290. 

continuing  trespass  in,  290  a. 

23 


354  INDEX. 

[References  are  to  sections.] 
LARCEXY  —  Continued. 

and  malicious  mischief  distinguished,  291. 

taking  lucrl  causa,  use  under  claim  of  right,  288-291. 

concealment  as  evidence  of  intent  in,  290. 

what  may  be  subject  matter  of,  271-275. 

wild  animals  domesticated,  274. 

value  of  property  as  an  element  in,  276. 

ownership  in,  292. 

from  person,  from  a  vessel,  293. 

from  a  building,  293-295. 

place  and  jurisdiction  of,  80,  296,  328. 

different  simultaneous  taking,  297. 

trespass  as  an  element  of,  278. 

to  preserve  life,  68. 
LASCIVIOUSNESS, 

what,  201. 

behavior  and  carriage,  what,  201. 

cohabitation,  what,  201. 
LAW, 

ex  poste  facto,  what,  3. 

enforcement  of,  59. 

penal  and  criminal,  strictly  construed,  11,  125, 

ignorance  of,  51,  52. 
LESSER  OFFENCE, 

conviction  of,  93,  112,  121. 
LIBEL, 

definition  of,  what,  172. 

malice  in,  173. 

publication  of,  what,  174. 

privileged  communication  in,  175. 
LUNATICS, 

irresponsible,  when,  39,  40. 
MAINTENANCE, 

defined,  143. 

intervention  by  person  having  interest  is  not,  144. 

must  be  an  officious  intermeddling,  145. 

tendency  to  relax  law  of,  145. 

See  Barratry,  Champerty. 

M. 

MALA    PROHIBITA   AND   MALA    IN  SE, 

distinguished,  53. 
MALICE, 

defined,  33,  173,  221-224,  254,  322. 
is  a  form  of  specific  intent,  32. 


INDEX.  355 

[References  are  to  sections.] 
MALICE  —  Continued. 

how  affected  by  intoxication,  47. 

aforethought,  express,  implied,  imputed,  presumptive,  221-224. 

in  arson,  254. 

express,  inferred  from  circumstances,  323. 

MALICIOUS  MISCHIEF, 

distinguished  from  larceny,  291. 
defined,  321. 
malice  in,  322. 

MALPRACTICE, 

effect  of,  on  criminality,  24. 
MANSLAUGHTER, 

defined,  226. 

voluntary  and  involuntary,  226. 

mitigating  circumstances  in,  227. 

provocation  in,  228,  229. 

death  in,  must  be  direct  result  of  unlawful  act,  230. 

unlawfulness  in,  231. 

negligence  and  carelessness  in,  232,  233. 

self-defence,  how  far  au  excuse,  234. 

MARRIAGE, 

when  bigamous,  196. 

when  subsequent,  a  defence  to  indictment  for  seduction,  23  a- 
MARRIED    WOMAN, 

when  excused  for  crime,  37,  12.5. 

not  liable  as  accessory  after  fact  to  husband,  74. 

cannot  commit  larceny  from  husband,  287. 

MARITIME  CRIMES,  337  ff. 

MASTER, 

right  of,  to  correct,  62. 

cannot  by  ratification  become  criminally  liable  for  servant's  act,  5. 

MATERIALITY, 

what  sufficient  to  make  false  testimony  perjury,  151. 
MAYHEM, 

at  common  law  defined,  217. 

consent  no  defence,  23. 

now  generally  defined  by  statutes,  217. 

generally  a  misdemeanor,  217. 
MEETING, 

town,  disturbance  of,  13. 

MISDEMEANANT, 

may  not  kill  to  arrest,  59. 
MISDEMEANOR, 

what,  11. 


356  INDEX. 

[References  are  to  sections^] 

MISDEMEANORS, 

joinder  of,  in  indictment,  114. 
MISPRISIOX,  19. 

of  treason,  138. 
MISTAKE, 

when  it  relieves  from  responsibility,  50,  57,  141. 

and  specific  intent,  34. 

as  to  identity  of  person,  assault  nnder,  34. 

as  to  necessity  of  defending  self,  induced  by  drunkenness,  47  a. 

must  be  reasonable,  64,  214,  235. 

See  Ignorance. 
MORALITY, 

offences  against,  15,  181,  192  ff. 

MORAL  OBLIQUITY, 

not  essential  to  crime,  7,  26. 

•whether  sufficient  to  amount  to  constructive  intent,  28. 
""      criminal  liability  while  engaged  in  act  involving,  50. 
MOTIVE, 

distinguished  from  intent,  26,  254. 
MURDER, 

defined,  220. 

degree  of,  225. 

malice  in,  47,  221-224. 

trial  for,  after  former  trial  for  assault,  122. 
See  Homicide. 
MUTE, 

standing,  92. 

N. 

NAME, 

allegation  of,  in  indictment,  103. 

NATIONS, 

law  of,  part  of  the  common  law,  2. 

offences  against,  337  ff. 
NAVIGABLE  STREAM, 

obstruction  of,  indictable,  14,  26,  179. 

NECESSITY, 

whether  a  justification  for  crime,  68,  236. 

NEGLIGENCE, 
what  is,  29. 
of  what  duties,  30. 
what  is  culpable,  31,  232,  233. 
effect  of  contributory,  24. 
evidence  of  fraud,  when,  339. 
cannot  take  place  of  specific  intent,  34. 


INDEX.  357 

[References  are  to  sections.] 

NOLLE  PROSEQUI,  94. 
NOLO  CONTENDERE, 

plea  of,  93. 
NOXCOXFORMITY, 

no  offence  in  this  country,  193. 
NOTE, 

taking  of,  not  extortion,  141. 

nuisancj:, 

defined,  178. 

corporations  liable  for,  88. 

illustrations  of,  178-181. 

no  prescription  for  right  to  maintain,  182. 

public  benefit  no  excuse,  182. 

no  act  authorized  by  law  a,  180. 

hindrance  to  a  public  right  a,  179. 

and  interference  with  enjoyment  of  a,  179. 

an  established  lawful  business  may  become  a,  182. 

time  and  place  sometimes  decisive  of,  180. 

justified  by  public  policy  -when,  61, 

principals  and  accessories  in,  69. 
NUISANCES, 

common  scolds,  drunkards,  barrators,  profane  persons,  keepers  of 
tippling-shops  and  houses  of  ill  fame,  promoters  of  lotteries,  dis- 
seminators of  disease  or  of  offensive  odors,  and  persons  annoy- 
ing the  public,  indictable  as,  11,  181. 


0. 

OATH, 

defined,  147.  . 

form  of  administration  of,  not  essential,  147. 

to  be  valid,  must  be  required  by  law,  148. 

must  be  wilful  and  false  to  amount  to  perjury,  150. 

must  be  on  a  material  point,  150,  151. 

■whether  materiality  of,  a  question  of  law  or  fact,  151. 

whether  voluntary  or  compulsory,  immaterial,  when,  150. 

according  to  knowledge  and  belief,  may  be  perjury,  1.50. 

so  if  no  knowledge  or  belief,  150. 

OATHS, 

of  officer  not  within  the  law  against  perjury,  150. 

OBSCENE  WORDS, 

whether  necessary  to  state,  in  indictment,  107. 

OBSCENITY, 

when  criminal,  15. 

publication  of,  when  justifiable,  61. 


858  INDEX. 

[References  are  to  sections.] 

OCCUPATION  OF  DWELLING-HOUSE, 

what,  253,  264. 
OFFENCES, 

joinder  of,  in  indictment,  114. 
OFFICE, 

corruption  in  public,  13. 

misconduct  in,  142 «. 

oath  of,  not  within  the  law  of  perjury,  150. 
OFFICERS, 

public  corruption  by,  indictable,  13,  142  a. 

libels  or  slanders  against,  indictable,  13. 

condonation  of  crime  by,  23  b. 

extortion  and  oppression  by,  141,  142. 

bribery  of,  what  amounts  to,  140. 

may  be  guilty  of  barratry,  143. 

of  court,  summarily  punishable  for  contempt,  155  a. 

who  are,  in  embezzlement,  300,  301. 
OPPRESSION,  142. 
OUTCRIES  IN  PUBLIC  STREET, 

criminal,  14. 
OWNERSHIP, 

in  arson,  meaning  of,  252. 

in  burglary,  meaning  of,  265. 

in  larceny,  meaning  of,  292. 

allegation  of,  in  indictment,  106. 


P. 
PARDON,  97. 
PARLIAMENT, 

Acts  of,  when  extended  to  colonies,  2. 
PARENT, 

riglit  of,  to  correct  child,  62. 
PARTICIPATION  OF  INJURED  PARTY  IN  CRIME, 

effect  of,  25. 
PARTICULARITY  OF  INDICTMENT,  100. 
PEACE, 

disturbance  of  public,  indictable,  14. 
PENAL  LAW, 

strictly  construed,  125 
PERJURY, 

defined,  147. 

only  where  oath  administered  by  authorized  person,  148. 

oath  must  be  required  by  law,  148. 

must  be  in  a  judicial  proceeding,  149. 


INDEX.  359 

[References  are  to  sections,] 

PERJURY  —  Continued. 

must  be  wilfully  false,  150. 

must  be  on  a  material  matter,  1-51. 

evidence,  amount  of,  required,  152. 

subornation  of,  defined,  13,  153. 

evidence  in,  153. 

oath  of  office  not  within  law  of,  150. 

similar  offences  less  than,  153  a. 

PERSON, 

injury  to,  when  criminal,  16,  20-1  ff. 
PERSONAL   PROPERTY, 

forcible  trespass  against,  17,  170. 
when  realty  becomes,  in  larceny,  275. 

pestilence"^, 

destruction  of  property  to  stay,  61. 
PIRACY, 

defined,  338. 

robbery  on  board  a  vessel,  when  not,  338. 

how  triable  and  punishable,  338. 

jurisdiction  of,  78,  338. 
PLACE, 

public,  what,  16L 

allegation  of,  in  indictment,  105. 

PLEA, 

form  of,  92. 
PLEADING, 

criminal.     See  Indictment. 
POLICE    REGULATIONS, 
when  intent  required  in,  55. 

POLYGAMY. 

See  Bigamy. 

POSSESSION, 

and  custody  distinguished,  284,  299. 

and  title  distinguished,  278.  .  .        qoq 

recent,  of  stolen  goods,  proves  Larcenyjather  than  receiving,  3-». 

must  be  taken  to  constitute  larceny,  277. 
PREMEDITATION, 

a  form  of  specific  intent,  32. 

PRESUMPTION,  •   „  .f  07  ' 

that  person  intends  the  consequences  of  his  act,  meaning  of,  -/., 
of  malice,  from  conscious  doing  of  unlawful  act,  33,  3— . 

PREPARATION, 

intent  and  attempt  distinguished  from,  18o. 

PRESCRIPTION, 

no  justification  for  nuisance,  182. 


360  INDEX. 

[References  are  to  sections.] 

PRESENCE   OF   PRISONER,  92,  93,  96. 

PRESENTMENT,  91. 

PRESSURE   OF   CIRCUMSTANCES,  68,  236. 

PRINCIPAL, 

in  the  first  degree,  is  the  actual  perpetrator  of  crime,  69. 

all  are  in  treason,  69. 

all  are  in  misdemeanors,  69,  72. 

in  second  degree,  need  not  be  actually  present,  69. 

must  give  personal  assistance,  75. 

how  far  responsible  for  crime  not  contemplated,  71. 

when  Uability  terminates,  69. 

See  AccEssoKiES. 
PRISON, 

what,  162. 
PRISON  BREACH, 

defined,  162. 
PRISONER, 

to  be  brought  before  magistrate,  89. 

presence  of,  at  trial,  92,  93,  96. 
PRIVILEGED   COMMUNICATIONS, 

what,  175. 
PROCESS, 

contempt  of,  156. 
PROFANITY, 

form  of  nuisance,  181. 
PROOF, 

burden  of,  general  principles,  124. 

of  age,  36. 

of  coercion,  37. 

of  insanity,  45. 

of  lack  of  specific  intent  caused  by  drunkenness,  475. 

of  justification,  67rt. 

of  intent  in  statutory  crimes,  57. 
PROPERTY, 

how  far  it  may  be  defended  by  force,  66,  67,  215,  234. 

offences  against,  17,  269  ff. 

recapture  of,  66. 
"PROSTITUTION  '   AND  "ILLICIT  INTERCOURSE,'^ 

distinguished,  198. 
PROVINCIAL   LEGISLATION, 

effect  on  common  law  of,  2. 
PUBLIC   POLICY, 

when  a  justification,  61. 
PUBLIC    ECONOMY, 

offences  against,  163  If. 


INDEX.  '  3G1 

[References  are  to  sections.J 

PUBLIC  LAXDS, 

destruction  of  trees  on,  13. 
PUBLIC   OFFICE, 

corruption  in,  13. 

failure  to  discliarge  duties  of,  13. 
PUBLIC    PLACE, 

what,  164. 
PUBLIC   POLICY, 

when  excuse  for  crime,  61,  68. 
PUBLICATION   OF   LIBEL, 

what,  174. 
"PUFFING," 

whether  false  pretences,  308. 
PUNISHMENT, 

twice  for  same  offence,  when,  83,  110. 

fixed  by  common  law  when  statute  fails  to  provide,  3. 


Q. 

QUASHING  INDICTMENT,  94. 


E. 

RAILERS, 

common,  181. 

RAPE, 

defined,  241. 

carnal  knowledge  in,  what,  242. 

force  and  violence  in,  243. 

infant  male  incapable  of,  when,  36. 

evidence  of  fresh  complaint  in,  131. 

attempt  to  commit,  by  boy  under  fourteen,  184. 

RATIFICATION,  . 

by  master,  does  not  make  him  primarily  responsible  crimmally,  o. 

when  may  make  him  responsible  as  accessory,  10. 
REAL   PROPERTY, 

injury  to,  not  criminal,  17. 

REBELS, 

adhering  to,  may  be  treason,  136. 
RECEIVING   STOLEN   GOODS, 

substantive  offence,  324. 

what  constitutes,  324,  325. 

jurisdiction  in  cases  of,  328. 


362  INDEX. 

[References  are  to  sections.] 

REGRATING, 

what,  177. 
RELIGION, 

motives  of,  no  excuse  for  crime,  26. 

offences  against,  1.5,  192  tf. 
RENT, 

defined,  165. 
REPEAL   OF   STATUTE   PENDING  TRIAL, 

effect  of,  3. 
REPENTANCE, 

does  not  lessen  responsibility  for  criminal  act,  5,  23  a. 
REPRIEVE,  97. 
RESCUE, 

of  prisoner,  criminal,  3,  159. 

attempted,  may  be  a  riot,  166. 

RESTITUTION, 

effect  of,  21. 
RETREAT, 

necessity  of,  before  killing,  when,  64,  214,  215,  234. 
RIGHT  AND  WRONG, 

knowledge  of,  as  test  of  insanity,  40. 
RIOT, 

defined,  165,  239. 

violence  necessary  to  constitute,  166. 

disturbance  of  public  peace,  gist  of  offence,  166. 

provoking,  14. 
ROBBERY, 

defined,  245. 

force  and  violence  necessary  in,  246. 

putting  in  fear  in,  what,  247. 

taking  of  property  in,  what,  248. 

on  board  a  vessel  not  piracy,  when,  338. 

S. 
SAFETY, 

of  individual,  injury  to,  criminal,  16. 
SCHOLAR, 

may  be  punished,  62. 
SCOLDS, 

common,  181. 
SECOND   OFFENCE, 

form  of  charging,  99. 
SECURITY, 

offences  against  public,  14,  163  ff. 


INDEX.  363 

[References  are  to  sections.] 

SEDUCTION", 

whether  indictable  at  common  law,  197. 

what  constitutes,  197. 

burden  of  proof  of  chastity  in,  197. 

and  abduction  distinguished,  197. 

and  prostitution  distinguished,  198. 

effect  of  subsequent  marriage,  23  a. 
SELF-DEFENCE, 

how  affected  by  intoxication,  47  a. 

when  may  kill  in,  61,  214,  232,  234-236. 

how  involved  in  defence  of  castle,  67. 

and  killing  from  necessity,  68. 

burden  of  proof  of,  67  a. 
SENTENCE,  96. 

cumulative,  115. 

after  plea  and  demurrer,  when,  123. 

SERVANT, 

admission  of  burglar  by,  22. 
larceny  by  trick  from,  278  a. 
in  embezzlement,  who  is,  300. 

SHIPWRECK, 

rights  of  survivors  of,  to  save  themselves,  68,  236. 
SHOOTING, 

so  as  to  cause  fright,  when  indictable,  16. 
SLANDER, 

when  indictable,  176. 
SODOMY, 

defined,  203. 

how  punishable  at  common  law,  203. 
SOLDIER, 

killing  by,  when  justified,  60. 

SOLICITATION, 

an  attempt,  when,  19,  184,  185. 

distinguished  from  acquiescence,  21,  22. 

by  person  affected  takes  away  criminality  when,  22. 

by  third  persons,  22  a. 
SPECIFIC   INTENT,   32. 

not  supplied  by  negligence,  34. 

how  affected  by  drunkenness,  47. 

when  requisite  in  statutory  crimes,  52. 
SPORT, 

injury  in  course  of,  23,  238. 

STATE'S   EVIDENCE, 

effect  on  criminal  liability  of  becoming,  23  h. 


364  INDEX. 

[References  are  to  sections.] 

STATUTE, 

relating  to  crime,  3. 

to  be  interpreted  in  light  of  common  law,  3,  6. 

repeal  of,  pending  trial,  effect  of,  3. 

expiration  of,  3. 

most  minor  offences  defined  by,  12. 

how  far  jurisdiction  may  be  conferred  by,  81. 

indictment  upon,  109. 
STATUTORY  CRIME, 

degree  of,  how  determined,  10. 

whether  intent  an  element  in,  53-57. 

when  doctrine  of  constructive  intent  applicable  to,  28,  34. 

form  of  indictment,  whether  constitutional,  110. 

principal  and  accessory  in,  G9. 

specific  intent,  when  requisite  in,  51. 
SUBMISSION, 

distinguished  from  consent,  209. 
SUBORNATION   OF  PERJURY,  1-3,  153. 

See  Perjury. 
SUICIDE, 

criminal,  185. 

attempt  at,  punishable,  185. 
SURPLUSAGE, 

indictment,  101. 
SWEARING, 

when  criminal,  15. 

habitual,  a  nuisance,  181. 
SWINDLING, 

what,  320. 

T. 

TABULA  IN NAUFRAGIO,  68. 
TAKING, 

temporary,  not  lareeny,  289. 
TESTIMONY, 

of  defendant,  127. 

of  accomplice,  130. 
THEF  BOTE, 

defined,  23  c. 
THEN   AND   THERE, 

in  indictment,  105. 
THIRD  PERSONS, 

defence  of,  65. 
TIME, 

allegation  of,  in  indictment,  104. 


INDEX.  365 

[References  are  to  sections.] 


TOKEX, 

cheating  by'J  what,  319. 
TRANQUILLITY, 

offences  against  public,  II,  163  f£. 
TREASON, 

at  common  law,  what,  134. 

liiflh  and  petit,  9,  134, 

defined,  135. 

levy  of  war  in,  136. 

insurrection  against  private  person  not,  136. 

who  may  commit,  137. 

misprision  of,  138. 

evidence  in,  139. 
TRESPASS, 

on  real  estate,  not  criminal,  17. 

forcible,  what,  170. 

(lb  initio,  not  recognized  in  criminal  law,  5, 
TRIAL, 

criminal,  how  conducted,  93. 

by  jury,  after  demurrer,  170. 

TRICK, 

larceny  by,  277  «,  278,  278  a. 

TRUST, 

breach  of,  not  criminal  under  old  common  law,  17. 

TRUTH, 

how  far  a  defence  in  criminal  libel,  173. 


u. 

UNITED   STATES, 

courts  of,  juri.sdiction  of,  82. 
no  common  law  of  crimes  of,  4. 
UNLAWFUL    ASSEMBLY, 
defined,  105. 


V. 

VARIANCE, 

in  indictment,  101,  103,  107. 

VENUE, 

in  indictment,  how  laid,  102. 

VERDICT,  93. 

VESSEL    AT   SEA,  v,       .       ,        -i    70 

partof  the  jurisdiction  of  the  sovereignty  under  whose  flag  she  sails,  7». 


366  INDEX. 

[References  are  to  sections.] 

VIOLENCE   TO   TERSOX, 

criminal,  10,  20i  ff. 

what  sufficient  in  riot,  166. 
VOLUNTARY   CONFESSION, 

what  is,  128. 
VOLUNTEER, 

when  failure  of,  to  continue  to  act  may  be  criminal,  30 
VOTING, 

fraudulent,  13. 


W. 

WAR, 

levy  of,  what,  136. 
WARRANT, 

to  be  shown  on  demand,  87. 

arrest  without,  88. 
WATER, 

infection  of  drinking,  criminal,  16. 
WEAPON, 

openly  carrying  dangerous,  criminal,  14. 
"  WILFULLY  " 

meaning  of,  322. 
WILL, 

against,  meaning  of,  244,  247. 
WITNESS, 

defendant  may  be,  127. 
WITNESSES, 

in  perjury,  152. 

in  subornation  of  perjury,  153. 

in  treason,  139. 
WORDS, 

how  alleged  in  indictment,  107. 

no  justification  per  se  for  assault,  212. 

ordinarily  will  not  reduce  murder  to  manslaughter,  227. 
WORSHIP, 

disturbing  public,  criminal,  15. 
WRITING, 

allegation  of,  in  indictment,  108. 

larceny  of  instrument  in,  272. 
WRONG, 

difference  between  crime  and,  6. 


Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


FormL9-10m-3,'48(A7920)444 


LAW  LIBRARY 


TSS  USSAXT 


mil 


AA    000  746  615    4 


k5o 

C85Mli2 


\\X 


(M 


\\a 


